Law Times

Law Times • June 16, 2014 Page 9 www.lawtimesnews.com Equal shared parenting bill defeated But proponent vows to keep pushing for Divorce Act changes By arsHy mann Law Times he latest attempt to bring the presumption of equal shared parent- ing to child custody matters in Canada has failed. Bill C-560, legislation intro- duced by Saskatchewan Con- servative MP Maurice Vellacott, went down to defeat on second reading. The bill would have amended the Divorce Act in a number of ways, most promi- nently to prescribe that judges should start from an assump- tion that parents should have equal custody unless giving one side a greater share could demonstrably enhance the best interests of the child. Brian Ludmer, founding partner of Ludmer Law and co- founder of Lawyers for Shared Parenting, wrote the language in the bill. He was surprised and disappointed the bill didn't at least make it to the committee stage. "What were they so afraid of that they couldn't let it get to committee for further study? You know what they were afraid of in my view? That the com- mittee would say there's a lot of merit to this. I think this got shut down because they didn't want to hear a further study and to hear there's actually merit." Equal shared parenting has become a major cause for fathers' and men's rights groups interna- tionally. Proposals similar to bill C-560 have surfaced during sev- eral parliamentary sessions but have yet to make any headway. Ludmer points to social sci- ence literature, much of it by Edward Kruk, a social work pro- fessor at the University of Brit- ish Columbia, that argues equal shared parenting is in the best interests of children. "The social science literature tells us that the closer you get to 50/50 and two primary parents, the better the outcomes," says Ludmer. Currently, judges try to deter- mine an arrangement that's in the best interests of the children. Ludmer argues the approach of- ten leads to needless litigation that's actually bad for children. "The most unfair criticism of bill C-560 or frankly any simi- lar legislation in any jurisdic- tion around the world is that it's about parents' rights rather than children's rights. And it's not. The current system is about par- ents' rights." John-Paul Boyd, executive di- rector of the Canadian Research Institute for Law and the Fam- ily, believes proponents of equal shared parenting misunderstand the reasons custody arrange- ments often end up favouring one parent over another. "If the parent who has not been the stay-at-home parent is still working full time, why on earth would you arrange a 50/50 set of parenting arrangements?" And while he agrees there are some studies that show an equal parenting arrangement is best for children, there are also a large number of reports that come to different conclusions. "In fact, if there is any consen- sus in the literature, the consen- sus tends to gather around the idea that there is no particular parenting arrangement which is presumptively best for all chil- dren," says Boyd. While Boyd is against a pre- sumption of equal shared par- enting, he thinks it's wrong for a judge to impose any sort of pre- sumption. "The only issue I have is that there should be a presumption about any kind of parenting ar- rangements, whether it's shared parenting or some sort of pri- mary-caregiver-plus-weekend- parent kind of thing. Both of those presumptions are wrong- headed." Many people involved with the fathers' rights movement argue that since a significantly greater number of women re- ceive a larger share of custody in separation cases between hetero- sexual couples, the courts have a bias against men. Boyd, however, argues the disparity ref lects the fact that women, for a variety of economic and social reasons, tend to be the primary caregiver before separation. Courts simply maintain that. "After all, the status quo is an arrangement that the par- ents themselves agreed to. They together made the economic and social decision that this particu- lar parent would be the parent staying at home caring for the children," he says. "And so the judge makes an or- der carrying on the status quo on the basis that this is the arrange- ment that the child is used to, but also just from a purely logical per- spective, this is what the parents themselves had agreed to." Boyd argues there are many reasons women tend to be the primary caregiver before separa- tion. For example, women on av- erage tend to earn less than men and, as a result, are more likely to leave their jobs or take on part- time work. Another reason women be- come the primary caregiver, ac- cording to Boyd, is mothers have the ability to breastfeed, some- thing many families want to do for their children. But Boyd says that even without these two re- alities, women still end up with most of the childcare work. "Even if you were able to strip away the economic part of it and biological part of it, there's still the sociological expectation that we continue to be acculturated with, this idea that moms are the perpetual caregivers and the idea that dads work outside the home," he says. Another aspect of the bill that worried Boyd was that it would have retroactively applied to all divorce orders made in the past. "You can imagine the tidal wave of annoyed people f lood- ing into court saying this is what should apply to me," he says. He didn't oppose all aspects of the bill. "One of the good parts was fi- nally overhauling the antiquated and adversarial language with which we talk about the care of children, which is custody and access, which of course places the locus of the right in the hands of the parents rather than the hands of the children," he says. Bill-560 would have changed that language to instead talk about parenting time and paren- tal responsibilities. Ludmer maintains that in addition to providing better outcomes for children, the bill would have had the added ben- efit of clearing up some of the backlog in the family courts. He argues other proposals, such as funding more mediation or making it mandatory, have failed to fix the problem. For "the types of people who don't settle their own affairs with the assistance of lawyers, me- diation was always available," he says. "They're not the type of people who are going to settle because you have mandatory mediation." And Ludmer argues that col- laborative law ultimately fails be- cause even collaborative lawyers ultimately have to follow their client's instructions. "And these types of people, the people that are so intent on marginalizing the other parent, they don't hire collaborative law- yers in the first place. They hire lawyers who are going to fight this case and win this case for them," he says. Instead, Ludmer sees equal shared parenting as the only long- term solution to the problem. "The answer is you need a default position to make it more difficult to litigate," he says. "And then guess what hap- pens? Then the backlog gets cleared up, and suddenly you've got court time available for the cases that really need it, the troublesome situations." Although currently only the Green Party of Canada supports equal shared parenting, Ludmer is adamant. "We're not dissuaded; it is the only answer," he says. "We'll keep going and hope- fully it will become an election issue for the benefit of chil- dren." LT FOCUS Childview_LT_Nov4_13.indd 1 13-10-28 4:47 PM T 'The social science literature tells us that the closer you get to 50/50 and two primary parents, the better the outcomes,' says Brian Ludmer.

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