Law Times

Law Times • February 7, 2011 An online resource 1.800.263.3269 Focus On FAMILY LAW/TRUSTS & ESTATES Debate fires up over presumption of joint custody Proposal would fundamentally change approaches to post-separation parenting BY JUDY VAN RHIJN For Law Times A fundamental change to the very basis on which post-separation parent- ing is viewed is being urged by some members of the legal and mental-health professions while others fi ercely oppose the idea. 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 Offi ce in Toronto says that bringing in a presumption of joint custody would be an "across-the-board" approach to family law reform that would re- duce the number of cases com- ing before the courts. "Th is would be the biggest solution of all. What we do not have is a legally sanctioned cul- ture of joint parenting at the fed- eral 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 to- gether, and we have an arbitrary, artifi cial 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 fi rst message cou- ples would get from courts and legal practitioners is the expecta- tion of shared parenting. "Th e discussion would begin diff erent- ly. It would set the stage for more cases to settle in a way the parties themselves feel is appropriate and equitable. With that culture com- bined with mandatory mediation where the parties narrow the is- sues and resolve more issues that aff ect the ability of the parties to parent, we'd be well on the way to forging a new culture after separa- tion." Wise compares the idea to the introduction of the child- support guidelines. "It was un- fair 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 pro- pose something equally radical." Th e issue was given an airing in a lively debate at the Associa- tion of Family and Conciliation Courts Ontario conference in October. Edward Kruk, an as- sociate professor with the school of social work and family studies at the University of British Co- lumbia, presented the case for a rebuttable presumption of equal or shared parenting responsi- bilities, 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 parent- ing in a two-parent household to shared parenting in two dif- ferent households. Kruk believes the "winner- take-all" adversarial approach through sole custody isn't work- ing for either children or par- ents and that change is urgently needed. His numerous papers emphasize the negative eff ects on children with absent fathers and the positive impacts on chil- dren of shared custody arrange- ments compared to sole custody situations. He also notes there's decreasing parental confl ict in FEBRUARY WEB SPECIALS SAVE 20% 'Generally, there is a parent and an assistant parent. How does a judge make those two positions coincide?' says Kristen Bucci. joint custody families as com- pared to an increase of such problems over time in sole cus- tody families. In his presentation, he var- ied his basic proposal for a pre- sumption 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 pub- lished opinions say this would apply in proven cases involving a criminal conviction in a mat- ter directly aff ecting the parent- ing of the children or a fi nding 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 pre- sumption 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 pro- vide evidence that a diff erent ar- rangement is in the best interests of the children, it would be dif- fi cult for a parent to ever satisfy that," he says. Th is is precisely what worries Toronto lawyer and mediator Barbara Landau, who was pres- ent 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 ad- versarial situation. If a parent thinks a situation is inappropri- ate for a shared arrangement, they have to go to court and ar- gue against it." Landau believes there's a lack of understanding of the diff erence between joint legal custody, where parties agree to consult with each other on signifi cant decisions, and joint physical custody, which involves having the children 50 per cent of the time. Th is is echoed by other practitioners. Jane Murray of Burke-Robertson LLP in Ot- tawa is concerned about the var- ious interpretations of joint cus- tody. "Th ere would have to be a clear defi nition of exactly what you're presuming or there would be a lot of litigation around the defi nition," she says, noting she believes a presumption is unnec- essary. "Th ere is already a direc- tion in the Divorce Act that one of the factors be maximizing the child's time with each parent." Lawyer Kristen Bucci of Zo- chodne Bucci in Th under Bay, Ont., isn't in favour of true joint custody, which she defi nes 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 inter- ests of the child, and that rarely happens in real life." With respect to shared physi- cal custody, Landau fi nds 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 neighbour- hood. You need co-ordination and you need availability. People must have jobs that allow them to be available to have the chil- dren that much. I see people See Guidelines, page 11 PAGE 9 COMPENSATION AND DUTIES OF ESTATE TRUSTEES, GUARDIANS AND ATTORNEYS Jennifer J. Jenkins and The Late H. Mark Scott Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluaion CANADA LAW BOOK® www.lawtimesnews.com GUIDE TO POWERS OF ATTORNEY M. Jasmine Sweatman MEDIATING ESTATE DISPUTES Susan A. Easterbrook and Francine A. Herlehy O'BRIEN'S ENCYCLOPEDIA OF FORMS, ELEVENTH EDITION — WILLS AND TRUSTS, DIVISION V Editors: Mary L. MacGregor and Jennifer A. Pfuetzner

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