I have met and heard the tragic stories of many parents. PA is a function, by and large, of a custodial ex-partner, although some alienation can start while the couple is still together.

This blog is a story of experiences and observations of dysfunctional Family Law (FLAW), an arena pitting parent against parent, with children as the prize. Due to the gender bias in Family Law, that I have observed, this Blog has evolved from a focus solely on PA to one of the broader Family/Children's Rights area and the impact of Feminist mythology on Canadian Jurisprudence and the Divorce Industry.

Monday, February 7, 2011

The Law Times: Debate fires up over presumption of joint custody

Most of the old, and some nasty arguments still prevail in the debate about presumptive equal parenting. Some take the maternalistic view that only mom can nurture a young child but there is no scientific proof of this. Attachment theory was shown as not valid some time ago. Perhaps one should do a longitudinal study of lone parent dads and Gay men raising small children. Tell Elton John and his partner he has the wrong plumbing to nurture. As a former stay-at-home dad I will stack my nurturing capabilities with any woman on earth.

Others raise the bogus argument of child support claiming dads are just cheap skates. What they fail to register is the illogical and fallacious nature of the argument. A final child support award will be based on the relative incomes of the two parties and  the time they share with the child. A dad making more money will still pay child support in a 50-50 relationship.  In addition, dad will be paying for the support of his child directly, while in his care not through another spouse or a third party, like FRO in Ontario.  In other words when the child is with him he will be purchasing all the requisite items required that mom would buy in the current maternal only lone parent child custody regime. 

This regime, across Canada, gives mom sole physical custody in over 90% of cases.  What if we were dealing with a targeted affirmative action group rather than men? Society would not stand for such blatant discrimination.   Those who argue otherwise are just enabling the transfer of wealth from dad to mom as an excuse for not sharing a child.  This is just another form of child abuse and gate keeping separating  a biological child from the most important male role model in their lives.

The divorce act is gender neutral but judges routinely award sole custody to mom, as described above. Discretion needs to be removed as they have proven they cannot make judgments in keeping with the Act.

Others bring up the fallacious argument of abuse. PMB-C-422 now on the order paper, albeit far down the list, clearly states it is for fit parents.  It also includes great flexibility in the amount of time. A presumption is 50-50 but couples who cannot do this will work out reasonable time frames based on their abilities and work life.  We currently have a situation with mom as custodial parent farming out the child to a non-parent while she works. If not working she is collecting child support and many other public subsidies and is a burden on the State.  The largest consumers of welfare in canada are single moms. 

Shared  parenting allows mom to get training and productive work.   

Intimate Partner Abuse is relatively equal in Canada http://www.statcan.gc.ca/daily-quotidien/110127/dq110127a-eng.htm and some studies show it is initiated by the female, particularly in the 20-30 year age cohort, at a 71% rate in non-reciprocal violence.  Most studies also show mom is most likely to kill or maltreat a child and this is unrelated to the amount of contact.. http://victimfeministcentral.blogspot.com/2009/09/mothers-commit-vast-majority-of.html

Where presumptive shared parenting has been in place it shows divorce rates have dropped and an overall reduction  in the use of court facilities. It certainly has more positive outcomes for children who do not want to give up a loving parent who is consigned to be a visitor.

My first comments, above,  were off the cuff and from memory but these are a more thorough analysis of comments made in the piece against shared parenting.

A rebuttal of assertions by the anti-equal parenting Lawyers
I want to first congratulate Garry Wise on his astute observation on a reduction in cases going to court. Add mediation to the mix plus shared/equal parenting and court resources can be used for real matters that need to be before the court.  Issues like child custody, and divorce itself, are less matters of law and more human, interpersonal relationships full of emotion. There is little logic found in this affective process by the litigants.

Edward Kruk is a wise person and has done extensive research on shared parenting with some emphasis on the positive outcomes for children.  For those interested in reading his full report a PDF is here (101 pages) http://www.fira.ca/cms/documents/181/April7_Kruk.pdf, and the Executive Summary here. (9 pages).   http://www.fira.ca/cms/documents/179/April7_Kruk_Summary.pdf This should be required reading for all Judges, social workers, court associated mental health workers, and Lawyers for starters.

Barabara Landau takes the usual Victim Feminist approach to custody that currently exists and is the sure fire way for mom to get custody. Mom says dad is abusive and substantive proof is not required. False accusations are part and parcel of custody battles today. The current mantra is men are abusive, women are benign and never the twain shall meet. Judges, full of chivalry and misplaced honour decide they will not take any chances and cease dads parental involvement and make him a visitor.  This starts the road to many negative consequences for the children.

The real world data are compelling in stating the true story. Stats Can just released the most recent data on Family Violence http://www.statcan.gc.ca/daily-quotidien/110127/dq110127a-eng.htm and as was the case in preceding surveys it shows near parity in terms of gender participation. "Of the nearly 19 million Canadians who had a current or former spouse in 2009, 6.2% or 1.2 million reported they had been victimized physically or sexually by their partner or spouse during the five years prior to the survey. This proportion was stable from 2004 (6.6%), the last time the victimization survey was conducted, and down from 1999 (7.4%).
A similar proportion of men and women reported experiencing spousal violence during the five years prior to the survey. Among men, 6.0% or about 585,000, encountered spousal violence during this period, compared with 6.4% or 601,000 women."  Keep in mind this is also over a five year period.

In other words 94% of men and 93.6% of women were not affected  by Intimate Partner Violence.  For the tiny minority of those who are affected perhaps the court process is the way to determine the outcome using, not "he said", "she said", but real evidence.
Barbara Landau claims she is a mediator but how can someone mediate with pre-ordained views such as she espouses? Its perplexing and troubling. Mediation by definition is " one that reconciles differences between disputants. I'd say she already has her mind made up and pity the man involved in her sessions

Jane Murray is confused about Equal Parenting. We don't call it joint custody anymore  which is a legal fiction providing mom (in 90% of cases) with physical custody. Possession of the children is 10/10ths of the law except in the very rare cases where the parties can sit down and mom relinquishes control over her ex.  Courts rarely punish mom for withholding custody. Child custody and child support is about control of mom over dad post marriage. Might I suggest she, and others who are confused about the definition read PMB C-422 located on the Parliamentary website here. http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=3995880&file=4
This enactment amends the Divorce Act to replace the concept of “custody orders” with that of “parenting orders”. It instructs judges, when making a parenting order, to apply the principle of equal parenting unless if it is established that the best interests of the child would be substantially enhanced by allocating parental responsibility other than equally."
It is much better to debate with informed participants rather than those who are guessing at definitions.

Landau finds it rare for couples to come up with a plan for 50-50 parenting. She also clearly shows her lack of experience and insight. She is thinking inside the current box not of an entirely different approach. Parenting Plans should be compulsory.

She also puts forth other canards such as stage of development and child temperament. If we were to listen to these old and stale arguments then every parent contemplating using day care would need a certificate from a competent authority to declare the child is not anxious or intemperate for those strangers at Day Care centres licensed or not. Most children are very robust at changing locations otherwise we would not have most parents in the work force of both genders.  Parent's who care about their children will, in the end, work out the best arrangements knowing they are working from positions of equality rather than control by mom.

Landau also brings forth another feminist construction about the parenting connection. If we were to believe that I would today have sole physical custody of my children as I was the stay-at-home parent for the first 10 years of their development.  All mom has to do is make false allegations of abuse and take a run to the local women's shelter, even if she was just found out to have committed fraud in the family business. I can attest men and dads are very versatile and most take an active role in parenting. Landau would probably be the first to complain dad makes more money than mom and it might be true because dad works longer hours, at more dangerous work and doesn't have as many paternity leave options with his employer.

Buccci believes in equality post divorce only if there was equality before the marriage ended.  Even if this was adhered to more men would have 50-50 or 60-40 or 70-30 custody than now exists.  I don't think she has thought through the premise.  What she is saying is if Dad had to work so many hours to support the family he is unfit for equal parenting post marriage even though he had it during the marriage.  In other words his parenting was not of a substantial type to warrant a continuation of his involvement later. She is clearly stating dad is to be penalized for working hard to support the family and pay an unequal amount of child support as he may not have been available for the kids as much as mom.  Modern research extinguishes this argument but it persists.  

Let me put Bucci's assertions another way.  If there is unequal parenting, by her definition,  during the marriage and one parent is, therefore, punished post divorce by not having 50-50 with the children will she also agree that the parent who worked the hardest monetarily to support the family, and sacrificed to not be with the children as often as a result,  gets to keep  the money earned for themselves rather than as support.  After all unequal should be fair to both parties - shouldn't it?  Can we see the holes in her argument yet? The reader can no doubt think of many analogies.

Keep in mind PMB C-422 starts with a 50-50 presumption but parents can work out what is best for their particular situation. it does not pre-suppose a one size fits all mould. it may turn out to be 80-20, 70-30, or 60-40 but it is important to note the best interest of children is to have both fit parents in their lives on an ongoing basis. It ought not be a tug of war, winner take all approach which harms the kids.

"Lawyer Kristen Bucci of Zochodne Bucci in Thunder Bay, Ont., isn’t in favour of true joint custody, which she defines as joint decision-making. In her experience, it works only in rare cases. “At the point of separation, there is a lot of animosity. You need two people to talk calmly, rationally, and in the best interests of the child, and that rarely happens in real life.”

Kristen Bucci needs to read Edward Kruk's paper referenced above. For her to make a statement such as she has belies real world experiences with Equal Parenting. This method of dispute resolution reduces friction before and after the divorce.MJM


Proposal would fundamentally change approaches to post-separation parenting 

  By Judy Van Rhijn | Publication Date: Monday, 07 February 2011

A fundamental change to the very basis on which post-separation parenting is viewed is being urged by some members of the legal and mental-health professions while others fiercely oppose the idea.

‘Generally, there is a parent and an assistant parent. How does a judge make those two positions coincide?’ says Kristen Bucci.
In fact, the introduction of a presumption of continued joint custody after separation is a measure that provokes strong opinions on both sides of the argument. Garry Wise of Wise Law Office in Toronto says that bringing in a presumption of joint custody would be an “across-the-board” approach to family law reform that would reduce the number of cases coming before the courts.

“This would be the biggest solution of all. What we do not have is a legally sanctioned culture of joint parenting at the federal level under the Divorce Act or the provincial level. We have an anachronism of a custody/access-based system that evolved one or more generation ago when one parent was at home and one parent was working.

Almost all families now do the parenting together, and we have an arbitrary, artificial concept of best interests of the children that is so pliable and subjective that you can read it every which way.”
With a presumption in place, Wise says the first message couples would get from courts and legal practitioners is the expectation of shared parenting.

“The discussion would begin differently. It would set the stage for more cases to settle in a way the parties themselves feel is appropriate and equitable. With that culture combined with mandatory mediation where the parties narrow the issues and resolve more issues that affect the ability of the parties to parent, we’d be well on the way to forging a new culture after separation.”

Wise compares the idea to the introduction of the child-support guidelines. “It was unfair to certain parties and fair to others but it established a new status quo and took almost all the cases off the table. I’d propose something equally radical.”

The issue was given an airing in a lively debate at the Association of Family and Conciliation Courts Ontario conference in October. Edward Kruk, an associate professor with the school of social work and family studies at the University of British Columbia, presented the case for a rebuttable presumption of equal or shared parenting responsibilities, with the opposite view being given by lawyer Martha McCarthy.

Kruk has become one of the most vocal supporters of a presumption and favours a transition from shared parenting in a two-parent household to shared parenting in two different households. Kruk believes the “winner-take-all” adversarial approach through sole custody isn’t working for either children or parents and that change is urgently needed.

His numerous papers emphasize the negative effects on children with absent fathers and the positive impacts on children of shared custody arrangements compared to sole custody situations. He also notes there’s decreasing parental conflict in joint custody families as compared to an increase of such problems over time in sole custody families.

In his presentation, he varied his basic proposal for a presumption by coupling it with a rebuttable presumption against shared custody in cases of family violence and abuse, as proposed by the National Association of Women and the Law.

His published opinions say this would apply in proven cases involving a criminal conviction in a matter directly affecting the parenting of the children or a finding of a child in need of protection by a child welfare authority. Kruk proposes that the much more stringent standard of child in need of protection be applied before removing a parent’s legal custody rather than the test that looks to the best interests of the child.

Wise is in favour of putting the onus to prove that a presumption is inappropriate on the spouse who doesn’t agree. “If legislation said the starting point is joint custody, and the onus is on the parties to provide evidence that a different arrangement is in the best interests of the children, it would be difficult for a parent to ever satisfy that,” he says.

This is precisely what worries Toronto lawyer and mediator Barbara Landau, who was present at the debate and strongly disagrees with the proposal. “Where there is an onus, it is often on the victimized party to disprove it,” she says. “It makes for a potentially much more adversarial situation. If a parent thinks a situation is inappropriate for a shared arrangement, they have to go to court and argue against it.”

Landau believes there’s a lack of understanding of the difference between joint legal custody, where parties agree to consult with each other on significant decisions, and joint physical custody, which involves having the children 50 per cent of the time.

This is echoed by other practitioners. Jane Murray of Burke-Robertson LLP in Ottawa is concerned about the various interpretations of joint custody.

“There would have to be a clear definition of exactly what you’re presuming or there would be a lot of litigation around the definition,” she says, noting she believes a presumption is unnecessary. “There is already a direction in the Divorce Act that one of the factors be maximizing the child’s time with each parent.”

Lawyer Kristen Bucci of Zochodne Bucci in Thunder Bay, Ont., isn’t in favour of true joint custody, which she defines as joint decision-making. In her experience, it works only in rare cases. “At the point of separation, there is a lot of animosity. You need two people to talk calmly, rationally, and in the best interests of the child, and that rarely happens in real life.”

With respect to shared physical custody, Landau finds it’s rare that people come up with a plan for 50-per-cent sharing of physical custody. “You need geographic proximity because the children attend school and have friends in the neighbourhood.

You need co-ordination and you need availability. People must have jobs that allow them to be available to have the children that much. I see people who have to be at work from 7 a.m. to 7 p.m. Their plan is to leave the children with a caregiver when the other parent is at home.”

Landau adds: “You also have to consider the stage of development and temperament of the child. Do the children take to change easily or do they suffer anxiety over the smallest changes? There is a need for stability, security, and a reasonable routine.”

Landau also stresses the need to look at the parenting connection before the separation. “Some parents who are asking for 50 per cent have never looked after the child on their own except for maybe 20 minutes while someone went to the 7-Eleven. You need to build up the child’s comfort and confidence.”

Landau also stresses that the level of communication between the parents needs to be respectful so the children aren’t travelling back and forth between war zones.
Bucci, meanwhile, believes parents need to prove they were equally involved in parenting prior to separation. “One partner says, ‘Yes, I was absolutely equally involved.’

The other partner says, ‘Absolutely not. I did the majority of the decision-making.’ Generally, there is a parent and an assistant parent. How does a judge make those two positions coincide?”
Bucci, in fact, finds a lot of litigants get very hung up on a particular label. “So many parents want joint custody but are not really prepared to put in the work.”

Landau places the blame for this situation squarely at the feet of the child-support guidelines. “The question of equal time is contaminated by the supposed 40-per-cent rule of child support. Virtually every man wants 40 per cent of the time in the mistaken belief that they won’t have to pay child support.

I call it the faint-hope clause. If you took away the 40-per-cent rule, there would be a lot less fights over the percentage of time.”

Landau believes most cases start with a presumption that it’s in the child’s best interests to have a full relationship with both parents in any case. “A judge has an overriding responsibility to deal with each case in an individualized way, and that doesn’t preclude joint physical or joint legal custody.”