Myths Versus Facts REGARDING BILL C-560
(Amending Canada’s Divorce Act to provide for a rebuttable presumption in favour of equal shared parenting after divorce)
Lawyers for Shared Parenting
Canadian Equal Parenting Council
Leading Women for Shared Parenting
INTRODUCTION AND BACKGROUND TO BILL C-560
An Act to Amend Canada’s Divorce Act to Support Equal Shared Parenting
From the 1998 Canadian Senate special
joint committee on child custody and access
recommendations, to the present, numerous reports
and statements concerning the family law system as it relates to contested custody cases have recognized the need for
fundamental reform.
Former Ontario Chief Justice Warren Winkler has in the past expressed the concern that the current system needs
to
be rebuilt from the bottom up using new concepts and fresh ideas.
Bill
C-560, a private member’s
bill
proposed by
Conservative MP Maurice Vellacott (Saskatoon-Wanuskewin) is a reasonable and balanced proposal
to address the current broken system.
The principal change to the legislation, with
the goal of reducing incentives for
litigation over children, is the proposal for a rebuttable presumption that the best interests of children would be supported by equal shared parenting unless it
can be
established that those interests would be substantially enhanced by some other parenting plan.
Since the first reading in December
2013, Bill
C-560 has been subject to a first hour
debate in the House of Commons in March 2014
with additional debate scheduled for May 5, 2014, to be followed by
a second reading vote.
This “Myths
and Facts” document has been prepared to demystify the rhetoric put forward
in a
very active debate in the media and amongst stakeholders in relation to the proposal for equal shared parenting. It is
hoped that this
document will serve to cut through rhetoric
and enable a focus on the substantial benefits to children from the proposed amendments to Canada's Divorce Act.
This document is
sponsored by the following three organizations
seeking to foster
children's interests and protect children from the
effects of bitter custody disputes.
For further information, contact the following:
Canadian
Equal Parenting
Council (www.canadianepc.org):
Glenn Cheriton (613-260-2659)
Leading Women
for Shared Parenting (www.lw4sp.org): Paulette MacDonald (289-240-0665; kidsneed2parents@gmail.com) and Georgialee Lang (www.georgialeelang.com)
EXECUTIVE
SUMMARY
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MYTH
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FACT
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Bill C-560 is focused on the rights of parents as
opposed to the
current law, which is
focused on
the best interests of children.
Bill C-560 attempts to impose a “one size fits
all”
solution, ignoring
the uniqueness
of each family,
which should be left to Judicial discretion.
Imposing
a presumption is too radical
a change to the existing law and other approaches
to enhancing
maximum contact for
the children to both parents should be pursued instead.
Children benefit from having one primary parent and one home after
separation.
|
· The current adversarial litigation system of settling child-related disputes
is focused
on
parental
rights and is irreparably broken, with Courts
clogged with bitter, divisive
and financially devastating custody litigation between parents fighting over
children like property. Previous initiatives such as mandatory mediation, parenting education,
collaborative law and costs awards
have failed to solve the problem
· Bill
C-560 will
foster settlements and reduce litigation due to the requirement that a
parent seeking primary parent status must establish that the best interests of the
children (which remains
the focus under Bill
C-560) are substantially enhanced by disproportionate parenting time. Studies have consistently shown that it
is the very
existence of the custody litigation itself that causes most harm to children, parents
and taxpayers
· Bill C-560 focuses on the right of the child to know and love two primary parents in accordance with the UN Convention on the Rights of the Child. Custom solutions
are available under Bill
C-560 where there
is demonstrable merit in light of the unique aspects
of the particular family
· The latest definitive social science understanding is that children need to continue to have two primary parents after separation. See the list at the end of this
document
· The Canadian public
strongly supports
this initiative, with support ranging
between 70% and 80% of the public measured across all demographics,
regions and political affiliations. Judicial decisions
under the existing legislation have failed to progress in line with the social
sciences understanding of children’s needs and the voice of the Canadian public
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1.
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Bill C-560 is focused on the rights of parents as opposed to
the current law, which is focused on the best interests
of children.
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· The current adversarial litigation system of settling child-related disputes is focused on parental rights.
Parents
are represented by counsel and are
the parties
in the dispute.
Each parent asserts that they are
the better parent (often not objectively grounded
or driven by emotion) and better able to meet the
child’s needs and
each
parent defends against unfair
or mistaken attacks on their parenting from the other parent
· Bill
C-560 focuses on the right of the child to know and love two primary parents in accordance with the UN Convention on the
Rights of the Child
· Adversarial
litigation with parents as
parties
pitting one parent
against
the other will be limited under Bill
C-560 to those
situations where
there is
no
consensual agreement and where it
can be established that the best interests
of the children (which remains the focus
under
Bill C-560) are
substantially enhanced
by
disproportionate parenting time
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2.
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Bill C-560 attempts to impose a
“one size fits
all”
solution, ignoring the uniqueness of each family.
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· Bill C-560 continues
to
focus on the best interests of the child,
with an examination of the particular family
· The new rebuttable presumption simply means that the starting
point for the analysis is equal shared parenting.
From that starting point, the unique factors in each family are
assessed for
whether a
different parenting plan can substantially enhance the best interests
of the children
· Customizable solutions
are still available under Bill
C-560 where there is demonstrable merit in light of the unique aspects of the
particular family
· Conversely, litigation related to splitting hairs over which of two normative parents is
better, will be curtailed in the best interests of children and taxpayers
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3.
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Parenting arrangements after
divorce should just be left to the Court
to determine in its discretion. There are
too many
particular factors for any default position to be prescribed, even
just as a starting
point.
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· There is no widely accepted social science literature that supports
the ability of anyone (whether a psychologist
or Judge)
to determine, as
a precise percentage of time, the optimal arrangements for
a particular family’s
children in terms of time-
share between their
parents
· The only social science understanding that has
any merit is that
children need to continue to have two primary parents after separation. See the list at the end of this document
· Bill C-560 recognizes
that the current effort
to specify with
precision a specific timeshare between a primary and secondary parent, or the application of historical secondary parent “visitation”
timeshare models,
are not logically
or empirically justified. Custody litigation seeking to marginalize one parent
has no discernible benefit when
measured against the financial and emotional cost and the impact on the children
of litigation
· Studies have consistently shown
that it is the very existence of the custody litigation itself
that causes most harm to children
· Accordingly, Bill
C-560 creates a rebuttable presumption that
equal shared parenting is the starting
point for
the analysis and
that it is in the best interests
of the children unless it can be
established that the particular children’s needs can be substantially enhanced by some other parenting plan
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4.
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Imposing
a presumption is too radical
a change to the existing law and other approaches
to enhancing
maximum contact for the children to both parents
should be pursued instead.
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· The current system of adversarial litigation is
irreparably broken and, consequently, disincentives
to
pursue custody litigation
seeking primary parent status, except where demonstrably justified, must be implemented
· Despite the developments of both permissive and mandatory
mediation in many jurisdictions and the rise
of collaborative law
organizations and parent education programs, the family law courts
remain overburdened with substantial backlogs due to child-related disputes
· The discipline of costs awards has also not solved the problem
· This problem, together with the associated costs to taxpayers
and parents, has only gotten worse
over the years
· Further, the cost of litigation has led to significant advantages for wealthier parents or
for those more capably equipped to self- represent themselves
· The only practical
solution to emotion-driven litigation is
to
raise the bar
in terms of the legal
burden litigants must bear
if they wish to demonstrate that the best interests of the children are
enhanced by their being the primary parent and the other
parent relegated to secondary parent status
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5.
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Bill C-560 proposes an overly
simplistic idea of equality rather than considering a result
best for the children in a particular family.
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· Children need to be protected from parental conflict based on
self-perceptions of litigants as
a primary or better parent
· A starting point for families where
both parents are
normative (average) parents must be prescribed to prevent excessive litigation
· Children need to continue to enjoy
fully bonded relationships
with both parents.
There is
no
substitute for
time spent and
experience shared between parent and child
· The best alternative for most children is equal shared
parenting.
Bill
C-560 does
not impose this
solution, but rather
requires
compelling
reasons to depart from equal shared parenting in order to
curb bitter, high-conflict custody litigation where children are
used as the spoils
of war
· Children are used to seeing
both parents
every day regardless of the roles undertaken during the marriage. The next best alternative to an intact family is equal
shared parenting.
Bill
C-560 still
allows
for
custom-designed parenting plans
where there is demonstrable evidence of poor parenting, mental health issues, substance abuse and family violence
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6.
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Bill C-560 does
not give parties tools to resolve differences, minimize conflicts and maximize children’s benefits.
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· Bill
C-560 is a response to the overwhelming volume of today’s
expensive and divisive custody litigation that is
harming children’s emotional and financial futures
· By requiring demonstrable and compelling evidence that the
particular children’s
needs can be substantially enhanced by a
solution other than equal shared parenting, Bill C-560 will create
strong incentives for parents to settle their own parenting plans
and avoid litigation that will
not likely elevate them to primary
parent status
· Accordingly, Bill
C-560 will
minimize conflict
and protect children
from the effects of custody litigation and reduce the devastating
cost to families and taxpayers
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7.
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Bill C-560 will encourage families
to engage in lengthy and costly
legal battles.
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· The current legal environment fosters
the overwhelming extent of custody litigation now clogging the courts
· One of the primary benefits
of Bill C-560 is the
new requirement for
demonstrable and compelling evidence that the needs of
children will be substantially enhanced by an unequal parenting time schedule. This
will of necessity reduce the current plague
of high-conflict, expensive and stressful custody disputes
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8.
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The retroactivity clause of
Bill C-560 will
foster litigation in families with currently settled
court orders.
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· Bill C-560 maintains as the primary paradigm the best interests of children
· If a better
outcome for
the children in a particular family can be achieved by an evolution toward more balanced parenting times, the needs of children will, of necessity, be enhanced
· Only those situations where, despite a stable status quo, the children’s needs would justify a re-examination are likely to be pursued
· Courts will still take into account
a stable status quo
· Parents would still be able to meet and work out consensual
amended arrangements, whether equal parenting or
something close to equal parenting
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9.
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Bill C-560 fails to protect the rights of stay-at-home parents who occupied
a primary parent role
prior to separation.
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· Bill C-560 allows for
a healthier reconstitution of a family into
two homes.
Separation usually requires adjustments on the part
of both parents, including adjustments to work
and home care
schedules
· The employment rate of women with children substantially
increased between 1976 and 2012, especially among
women with children under six years
old. In 2012, the employment rate for
women with children under
six years old was
67.8% (up from
31.4% in 1976) and 79.0% for
women with children from 6 to 15 years old
(up from 46.4%
in 1976). (Statistics Canada)
· Further, parents in intact families who work during the day often are
heavily involved with their children’s homework
and activities on evenings and weekends.
An undue
focus on the roles undertaken prior
to
separation is too restrictive and inflexible to
assist families reconstituting after separation.
However, assertions of prior parenting roles can still be made and
considered by courts where appropriate
· Bill
C-560 maintains its primary focus on the right of children to know and experience both of their
parents after
separation. Assertions of prior primary status are about parents’
rights and
not focused on the best interests
of children
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10.
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Equal
shared parenting is not
advisable in high conflict cases.
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· Sharing parenting time reduces conflict over
inadequate
parenting time
· Bill C-560 still allows a court in
appropriate circumstances to allocate parental
responsibilities/decision-making in a manner different than the allocation of parenting time
· For appropriate cases where the use of parental coordinators
and mediators
is not sufficient to assist the separated family in cooperating, major decision-making powers
can be allocated to
one parent even though parenting time is
equal
· Parenting time is the private time that each parent gets to continue their
bonded attachment with
the children
and is a distinct issue, unrelated to decision making
on major issues
such as healthcare and education.
Private parenting time disengages the parents
and reduces
conflict
· The leading social sciences literature
refutes the assertion that equal
shared parenting time is somehow not advisable in high
conflict cases. See the list
at
the end of this document
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11.
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Equal
shared parenting will significantly reduce the amount of child support
received by support
recipients.
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· The cost to support
children is already shared
between both parents under the current legislation
· Today, special
and extraordinary expenses (such as camps, private school, childcare, tutoring
and extra-curricular
and sports activities) are
already shared
proportional to income
· Under the current child support
legislation, basic support items such as food, shelter and clothing will also generally be shared
pro-rata to income where
equal
shared parenting is
in place
· Accordingly, the needs of children will continue to be met based
on
a fair allocation of the separated family’s aggregate
resources, as is the case prior to
separation
· Bill C-560 does not alter the current child support
laws and its application will not result in
unfair or disproportionate childcare expense allocation
· There will
generally not be any material
reduction in aggregate
child support received by a support recipient
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12.
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A version of shared
parenting was tried in Australia and was
cut back after unfavourable results.
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· After the passage of the 2006 shared parenting amendments in Australia, the Australian Government commissioned a study by the Australian Institute of Family Studies to evaluate the impact
of the 2006 changes. Amongst the findings were that an
increased number of parents were able to sort out their post
separation arrangements with minimal
engagement of the
formal family law system and that the majority of parents in shared care time arrangements reported that the arrangements worked well for them and their children
· The 2012 changes (primarily focused on domestic abuse cases) were the result of a politically-driven process and were not
based on the actual experience of the public with family law
dispute resolution during the period of time between 2006 and 2012
· Prior to
the implementation of the 2006 Australian reforms, 77% of Australians
supported shared parenting. Five
years
after implementation, the figure had risen to 81%. As in
other jurisdictions, passage of shared parenting legislation was
accompanied by a substantial drop in litigation
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13.
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Variations of equal shared parenting are also an option
under the current legislation, so
Bill C-560 is not needed.
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· Bill
C-560 recognizes that despite the current federal legislation
having taken effect in 1985, the evolving views of the Canadian public and a more up-to-date understanding of children’s
needs have progressed far
beyond the actual decisions being made by courts
under the current legislation
· Bill C-560 is a response to ensure
that the needs
of children to
maintain two primary parental relationships are protected
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14.
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Children benefit from having one primary parent and one home.
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· The leading social science literature overwhelmingly
supports the view that children of divorce do better
when they have two
primary parents and two homes, as opposed to one home and a
place they go to “visit” from time to time
· Children quickly adjust
to the logistical issues of homework,
activities, clothing, sports equipment and toys
at
two homes and
often benefit from the experience.
· Children have two primary parents during their parents’ marriage and have the right to have those primary relationships continue after separation
· The leading social sciences literature on shared parenting is
referenced at the end of this document
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15.
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The quality of parenting time is
more important than the quantity
of parenting time.
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· The leading social science research listed at the end of this document clearly concludes that the amount of time spent is
crucial in fostering and maintaining parent-child relationships
· There is no substitute for
actual time spent together and sharing life’s experiences
together
in supporting parent-child bonding
· Children experience both parents 100% of the time before separation. Time does matter.
Children should not be
marginalized from either
parent
· Surveys of children and of parents who have experienced separation refute this myth
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16.
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Bill C-560 is
put forward by special
interest groups.
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· Equal shared parenting is supported by the vast majority of
Canadians of all regions and demographics. Public opinion polls over
many years have consistently indicated that between 70% and 80% of Canadians, whether tested by gender,
age, region
or political affiliation, support equal
shared parenting.
· Bill
C-560 is opposed by special
interest groups and vested interests, such as some family law lawyers, certain
academics and others
who make their living
from custody litigation and disputes
· Equal shared parenting legislation sponsors
include national parenting organizations
representing Moms and Dads
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17.
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The federal government should
wait
and coordinate any changes
with the provinces.
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· The Divorce
Act is federal
legislation and the applicable rules
for married couples
(comprising the vast majority of affected children) are governed by federal legislation
· There is an urgent need for
leadership from the federal government and attempting to coordinate amendments with
Provinces and territories
will
create significant delay in resolving
the current broken family law system
· The 1985 Divorce Act
changes, and modern child support laws,
were federal government initiatives
that the Provinces followed
· The Provinces, whose legislation governs unmarried couples’
children, will
inevitably fall in line
and follow the federal
government’s
lead
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18.
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It matters
that
many family lawyers and their associations
oppose Bill C-560.
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· The Canadian public
and taxpayers overwhelmingly
want equal shared parenting as a means
to end the custody wars clogging our
courts and damaging
children
· Parliament should be responsive to the overwhelming position
of the Canadian public and not the desires of special
interest groups. Many family lawyers do, in fact, support
Bill
C-560
· The concerns expressed by these groups have been
fully addressed in Bill
C-560 and in this document, as
well as in the
leading social sciences literature
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19.
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Bill C-560 is
too innovative.
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· There are a substantial number of jurisdictions around the world where variations
of shared parenting have been in place with very favourable results for quite some time, including France,
Sweden, the Netherlands, Belgium, Denmark, Italy and
Luxemburg, with the UK, Norway, Germany and other countries in various stages
of shared parenting deliberations
· In the United States
36 states now explicitly authorize joint
custody (i.e. some variant of joint legal
and residential
custody) with 14 having a presumption variably defined in favour of joint custody and 6 having the equivalent of a rebuttable presumption
of substantive shared parenting.
Shared parenting initiatives
have been reported in Minnesota, Florida, South Dakota,
Arkansas, Massachusetts and South Carolina
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For further
information, contact
the
following:
For examples of
the
leading social sciences literature supporting shared parenting, see the following:
1. The Equal Parent Presumption, Social
Justice in the Legal
Determination of Parenting After Divorce,
Edward Kruk, McGill-
Queen’s University Press, Montreal
and Kingston, 2013; ISBN - 10: 0773542914 and ISBN - 13: 9780773542914
2. “Shared physical custody: Outcomes
for children. Review
of
research”, Dr. Linda Nielsen, (2013)
American Journal
of
Family
Law, 27, pp. 61-72 &
123-137
3. Social Science and Parenting Plans for Young Children: A Consensus
Report, Richard A. Warshak, (with the endorsement of the
more
than 100 researchers and practitioners listed in the Appendix), Psychology, Public Policy and the Law, American Psychological
Association, (2014), Vol. 20, No.1, 46 – 67
4. Arguments for an Equal
Parental Responsibility
Presumption in Contested Child Custody, Edward
Kruk, The American Journal of Family Therapy, (2012), 40:1, 33-55
5. Parenting Time & Shared Residential
Custody: Ten Common Myths, Dr. Linda Nielsen, The Nebraska Lawyer, Jan-Feb 2013
6. Custody and parenting time: Links to family relationships and well-being after
divorce. Fabricius W. V., Braver, S. L., Diaz, P., & Velez, C.E. (2010). in M.E. Lamb (Ed.), The Role Of The Father
In
Child Development (5th ed., pp. 201 - 240). N.Y., Wiley.
ISBN
- 10: 047040549X and ISBN
- 13: 9780470405499
7. Parenting time, parent conflict, parent-child relationships, and children’s
physical health. Fabricius, W. V., Sokol, K. R., Diaz, P., & Braver, S. L. (2012). in Kuehnle, K. & Drozd, L. (Eds.) Parenting Plan Evaluations: Applied Research for
the Family
Court. Oxford University Press (2012) ISBN
- 10: 0199754020 and ISBN - 13: 9780199754021
8. Child Adjustment in Joint-Custody Versus Sole-Custody Arrangements: A Meta-Analytic Review, Robert Bauserman, Journal of Family Psychology, (2002), Vol. 16, No. 1, 91–102
9. Children’s
Living Arrangements Following Separation and Divorce:
Insights From Empirical and Clinical Research, Joan B.
Kelly, Family Process, (2006), Vol. 46, No. 1,
11. For
further research, visit the websites of the U.S. National Parents Organization (www.nationalparentsorganization.org) and that of the International
Council on Shared Parenting:(www.twohomes.org)
