12 December 2013

Equal Parenting Amendment Bill Tabled, would Amend Divorce Act

Maurice Vellacott, Member of Parliament for Saskatoon-Wanuskewin, has succeeded in tabling a private member's bill in the House of Commons to amend the Divorce Act. The Divorce Act is of course the federal law that deals with the divorce of married spouses, custody and access, child support and spousal support.

Mr. Vellacott's proposal, Bill C-560, has certain merits in that:
  • orders about the care of children would be dealt with though "parenting orders" rather than orders for custody and access;
  • a discussion of counselling, parenting coordination and arbitration would be included in the advice lawyers must give their clients; and
  • a parent would be required to give 30 days' notice if moving the child's residence.

However, the bill would also amend s. 16, the part of the Divorce Act that talks about custody and access, to create a presumption that it is in the best interests of children that their time be shared equally between their parents. Here are some of the changes Mr. Vellacott proposes for this section:
(4) Subject to subsection (5), in making a parenting order, the court shall:
(a) apply the presumption that allocating parenting time equally between the spouses is in the best interests of a child of the marriage; and 
(b) apply the presumption that equal parental responsibility is in the best interests of a child of the marriage.
(5) The presumptions referred to in subsection (4) are rebutted if it is established that the best interests of the child would be substantially enhanced by allocating parenting time or parental responsibility other than equally. 
(6) If the presumptions referred to in subsection (4) are rebutted in accordance with subsection (5), the court shall, in making an order under this section, nevertheless give effect to the principle that a child of the marriage should have the maximum practicable contact with each spouse that is compatible with the best interests of the child. 
(15) The primary considerations to be taken into account in determining the best interests of a child of the marriage, to be assessed in aggregate, are
(a) the benefit to the child of having a meaningful relationship and as much contact as is practicable with each of his or her parents; 
(b) the continuity of relationships with relatives; 
(c) the willingness, and the effectiveness of the efforts, of each spouse to facilitate, encourage and support the child’s continuing parent-child relationship with the other spouse; and 
(d) the protection of the child from physical and psychological harm through abuse, neglect or alienation of parental affection.
(17) The court shall apply the following principles in allocating parenting time between the spouses to the extent that they are compatible with the best interests of the child:
(a) weekend, vacation, school holiday, family birthday and religious and cultural holiday time shall be allocated equitably between the spouses, with a view to the spouse with lesser aggregate time having as much of his or her parenting time as possible at times when he or she can be present with the child; 
(b) extra-curricular and educational programs and activities shall be scheduled so that they have an equitable impact on the parenting time allocated to each spouse; and 
(c) if relatives of the child reside in other cities, the travel requirements of a spouse shall be taken into consideration.
(18) If the court makes an order under this section that does not provide for equal parenting time or equal parenting responsibility, the court shall, in the reasons for its decision, explain in detail why such an order was made notwithstanding the principles for parenting orders set out in this section.
I do appreciate where Mr. Vellacott is coming from. There is a common misapprehension that men are discriminated against in family law cases, and all of the men's rights groups I am aware of propose some sort of presumption in favour of shared custody as a facile means of curing the problem.

However, from my perspective as a family law lawyer, such a presumption would not be in the best interests of children. It is certainly true that many separated parents have a shared custody arrangement, or something close to it, and that most of their children are doing very well. There are many other separated parents for whose children a shared custody arrangement would not be beneficial. The situations that leap to mind include:
  • where there has been a history of family violence, in the broad sense of the Family Law Act definition;
  • where the parents are engaged in high levels of conflict;
  • where a parent has taken a hands off approach to raising the children;
  • where a parent is dealing with an addiction or another serious mental health concern;
  • where the parents have irreconcilable opinions about matters essential to the raising of their children;
  • where a parent's work schedule requires long absences;
  • where there have been threats to abduct the children; or,
  • where a parent has shown no interest in the children after separation.
I'm sure I would come up with a much longer list if I gave further thought to the matter. In any event, my point is that families don't shop from the one-size-fits-all rack. The reality is that each family is different, and the current system, which contains no such presumptions, allows the court to custom-fit the parenting arrangements that are best for each family. One has only to look to the disastrous consequences of Australia's experiment with equal parenting presumptions to realize that such presumptions have no place in family law.

Mr. Vellacott's bill had its first reading on 6 December 2013. Hopefully this bill will suffer the same fate as Mr. Vellacott's efforts in 2010 and 2009, Bill C-422. Mr. Vellacott can be reached by email at maurice.vellacott@parl.gc.ca or by telephone at 613-922-1899 (Ottawa) or 306-975-8886 (Saskatoon). Click here to find your Member of Parliament by postal code.

Update: 24 December 2013

Dear Father's Rights People,

Thank you all very much for your comments. I appreciate, and indeed anticipated, your reaction to this post. However, for a more fulsome explanation of my views, please see my post from 20 December 2013, "Why There is No Place for Presumptions of Shared Parenting in Family Law: A Polemic for the Holiday Season," before posting a comment here.

And to those among you who complain that I have misrepresented Mr. Vellacott's bill, please note that I have provided a link the text of the bill and have quoted directly from the bill above. If you can explain how I have misrepresented the content of the bill, I will gladly post your comment.

I would also like to mention that the bill in question concerns the federal law of Canada, and that the legislation, rules and principles adhered to in Canada may not be similar to those of your jurisdiction.

Update: 24 May 2014

Commenting on this post is now closed. 

Update: 2 June 2014

Bill C-560 was defeated by a 80 to 174 vote at second reading on 28 May 2014.

45 comments:

  1. Is there a case law regarding a stay order once a Supreme Court judge has ruled in favour of the parent to travel with children outside Canada? Going to court next week and would like to reference to it.

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    1. Sure, there's lots of cases that talk about that. Your local law library should be able to help you find a case or two on that point.

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    2. Surprise, surprise! A lawyer doesn't like this bill and has misrepresented it. How would you hold custody over opposing counsels head if this went through? It certainly will be hard to draw out, expensive and desperate fights if both parties are on equal footing, won't it?

      Why do you say the Australian system is "disastrous"? Citations please.

      And finally, what exactly is "one size fits all" about this"? You know what the presumption is in high conflict separations currently. It is specifically 2 weekends a month for the "visitor" parent, with 1 movie night in between. That's the "one size fits all" right now.

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    3. Thanks very much for your comment. You'll note that I haven't misrepresented the bill, I've quoted extensively from the actual text of the bill for readers to make up their own minds about it.

      There are in fact no presumptions in the present system. There is no act, no regulation and no rule that says that a parent should have "2 weekends a month", whether the parents are high conflict or not. I'm afraid that you are misinformed on this point.

      I say that the Australian experiment was disastrous as the deaths of several children were directly linked to the presumption. There's plenty of academic research on the subject, some of which is available from the website of the Attorney-General's Department at www.ag.gov.au/Publications/Pages/default.aspx and in the various Australian and international family law journals. The work of Professor John Wade is a good starting point on the subject.

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    4. Did you get my challenge to ACTUALLY post evidence in support of your claim that "the Australian experiment was disastrous"? You must be busy over the holiday season.

      Or perhaps being a Family Law lawyer you are just used to presenting baseless assertions.

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    5. Yes, I did receive your "challenge." You will see that I have referred you to some sources above.

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    6. Well, I live in Australia, and far from being disastrous, the shared parenting in family law has been a wonderful success for the majority of children and parents.
      There are always individual hard legal cases, but 'several' tragedies cannot in any way be considered a statistical confirmation of causation by legislation, let alone correlation of those individual tragedies with regard to shared parenting arrangements.

      Here's some one elses opinion.
      http://www.articlesaboutmen.com/2010/06/top-10-myths-about-shared-parenting-child-custody-laws-in-australia-2010-911/1348/

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    7. Very good article. Thanks for posting. Here is a excerpt:

      "If these laws were mandatory in any shape or form, one would have expected that close to 100% of court outcomes would have resulted in equal parenting time arrangements, however as evidenced by the Court’s own figures, the figure is significantly less at only 15% of outcomes."

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    8. With respect to my claims about the Australian experiment, my too off-hand comment about the deaths of children were based on information obtained in a personal communication with Professor John Wade. Now that I am back in the office, I have been able to track down a number of the references which informed my understanding of the Australian effort at a presumption of shared parenting and the deaths of children in connection the legislated presumption:

      · "Suffer the little children," Jen Jewel Brown, Melbourne Sunday Age p. 15, 3 May 2009

      · "Custody laws hit children - judge," Matther Fynes-Clinton, Brisbane Courier Mail p. 3, 10 November 2008

      · "50-50 is not fair," Matthew Fynes-Clinton, Brisbane Courier Mail p. 20, 10 November 2008

      · Australian Institute of Family Studies, Parent-child contact and post-separation parenting arrangements, Research Report No. 9 p.129, 2004

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  2. Also, I'd like to point out that the results of family law in Canada, shows (according to the RCMP) that:

    *When all age groups were considered, mothers and step-mothers killed more children than fathers and step-fathers.
    http://www.rcmp-grc.gc.ca/pubs/omc-ned/kill-tuer-eng.htm

    Considering the prevalence of sole custody going to the mother in Canada (around 80%-90%), I think it's likely that I could find some appeal to emotion fallacy also. That's if I wanted to "gender bait" this issue, which I don't. I have seen first hand how shared parenting presumptions would affect both mothers and fathers.

    I look forward to your citation and proof that, "the deaths of several children were directly linked to the presumption."

    Thank You

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    1. Your claims about mother's getting sole custody "around 80%-90%" are, I'm sorry to say, badly misinformed. At present, the vast majority of parents have orders and agreements providing them with joint custody. The cases in which mothers and fathers have sole custody are relatively few - and I say this from my years in practice - and I would guess clock in somewhere between 20% and 30%, and orders like that are usually made when: the parents are in extreme conflict with one another, family violence is an issue, a parent has been absent from his or her child's life, or where there are problems such as addictions and mental health problems.

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    2. I think what he is saying is that in cases where sole custody *is* granted, about 80-90% of the time that sole custody goes to the mother and not the father.

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  3. What it this? I read this in its entirety and its a blatent attack piece. Misrepresentation at its worst. By who else but a Family Law Lawyer. By the way this is the group who stand to lost the most if such an ammendment were to be made into law. Compensation cowboys, the scum of the earth.

    These liars makes the world a worse off place.

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    1. If you could please advise how I have misrepresented Mr. Vellacott's bill, I'd love to hear it. You'll see that I have provided a link to the complete bill and provided direct quotes of the part of the bill I am commented on.

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    2. Three weeks later and my anonymous commentator has yet to point to a misrepresentation.

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  4. Mr. Boyd, as one who has handled a number of custody cases over the years, I agree with your position. As for anonymous above, he has gone to a menrights site and asked that you be brigaded. Just thought you might want to know.

    http://www.reddit.com/r/MensRights/comments/1tm4mx/canadian_lawyer_lies_in_blog_about_shared/

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    1. Thanks... that would explain the delightful comments I've received in recent week. I humbly recommend you, and all of my other readers of course, to a remarkable and well-informed blog as an antidote:

      http://manboobz.com/

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    2. But here is a comment on the mens's rights subreddit from "kingcoco":

      Some of the comments posted appear rather uncivil and attack his character and motivations right from the get go. I am not surprised he sensored comments and think he was completely right to. It's one thing to disagree with him and question his evidence, but you can't and shouldn't expect a private blog to leave up comments that attack the character of the author. Not saying those are your comments that are insulting the author but some of them look like they might be.

      If you don't agree with someone, the best thing to do is post polite and rational responses.

      Thank you kingcoco.

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    3. Thank you, John-Paul. For your blog, for your patience, for your link to that other blog... thank you.

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  5. "However, from my perspective as a family law lawyer"
    In other words, from the perspective of an interested party, ie someone who has a keen interest in protecting your source of income. One wonders why the system must be adversarial, arbitrarily picking winners and losers. One also wonders why the winners are almost always women and the losers are almost always men. One also wonders why the rights of the father mean nothing and their financial futures are destroyed without any regard to their rights or feelings. First their children are forcefully taken away from them, then they are forced to pay crippling amounts of money to "support" children they rarely get to see. Sounds suspiciously like financial slavery to me.

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    1. Hi Johnnie, thanks for your comment.

      I'm afraid you've got it wrong. I'm not an interested party, at least not in the sense you mean. I act for men and for women and have no particular bias one way or the other.

      I'm also afraid that you are a bit mistaken your assumption that family law lawyers drive conflict. Although some do to be sure, the vast majority of us, at least in Canada, are interested in obtaining just results as efficiently as possible. Who do you think is driving the increased use of mediation, collaborative settlement processes and other out of court solutions? In Canada it is lawyers. I and the vast majority of my colleagues are interested in achieving a reasonable settlement for our clients, not dragging things out through to trial.

      Frankly, the profit motive you allege is irrelevant as well. Family law is a difficult, trying area of the law. If you choose to practice this area of the law, however, you find yourself drowning in work. When I was in active practice, I was referring two to five people a day out to other lawyers, not because I didn't like them or their problems, but because I simply couldn't take any more work. And trials, by the way, are extremely unpleasant. Twelve-hour days and working on weekends for the duration of a ten-day trial is no fun at all. It is horrible work.

      Finally, I have never seen a circumstance apart from alcoholism, drug addition or family violence where a father's children were "forcefully taken away" from him. Never. And as for "crippling amounts" of child support, in Canada the amount payable is fixed by tables according to the number of children and the income of the payor. It's designed to be affordable, but in the event that the table amount is "crippling," there is a provision in the federal Child Support Guidelines that allow a payor to ask for relief from the table amounts.

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    2. "I act for men and for women and have no particular bias one way or the other"

      Meaning what, exactly? Does this mean that when you have a woman for a client you'll do everything to screw over her husband, and vice versa? I would hope that you consider everyone's rights and feelings, not just the child's, or the mother's, or father's. I would hope that your claimed impartiality doesn't mean you disregard morality and human decency. A father is not a checkbook. A child is not leverage to be used against him. A mother is not a helpless creature that needs your protection.

      "I have never seen a circumstance apart from alcoholism, drug addition or family violence where a father's children were "forcefully taken away" from him. Never."

      Perhaps you're confused by my choice of wording. To clarify, when a mother wins custody, a father must lose it. He must give up has children to the mother or go to jail. You can sugar coat that with pleasant language however you'd like, but that is using the power of the state to force him into giving up his children under threat of criminal prosecution and imprisonment. In other words he is being forced into something against his will. His children are essentially "forcefully taken away" from him, whether he resists or not.

      "And as for "crippling amounts" of child support, in Canada the amount payable is fixed by tables according to the number of children and the income of the payor."

      That's exactly how it works in many US States as well. Unfortunately, most fathers can never get ahead financially once they've been put under this oppressive financial yoke. Child support is therefore crippling the financial future of most men, whether there is some arbitrary table in place or not. Why should a man pay anything in the first place if the state has taken his children away from him?

      You talked about lawyers pushing for arbitration and out of court settlements. That's great and all, but the way these things usually work is that such alternatives are contingent on the agreement of both parties. The easy way around that for a conniving mother is usually to refuse to cooperate or to falsely claim abuse. Then she gets her way and the case continues to trial.

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    3. Thanks, Johnnie, for your comment.

      I'm sorry about the apparently traumatic experience you have had with a lawyer. However, please do not rely on your bitter experience to presume that all lawyers behave in a similarly cavalier and opportunistic manner. You don't know me, and it is disrespectful and rude, to say the very least, to impugn my integrity and character as you have.

      I will post and reply to your future comments when you can manage to avoid ad hominem arguments and such sweeping generalizations.

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    4. I can sympathize with Mr. Blotus. My ex and her lawyer during our negotiations were DIRECTLY dealing custody little and larger chunks for the following:

      -property
      -mediation demands
      -spousal support
      -jurisdiction
      -and unbelievably DELAYS ON COURT DATES!

      Opportunistic lawyers don't do this "officially", it is unspoken but your lawyer explains the "game" to you. It is disgusting. Some women can not have the best interest of children in mind also. My Ex's lawyer had the OPPORTUNITY to do this and it needs to stop.

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  6. Attorney Boyd,

    We strongly disagree with your opinions. Leading Women For Shared Parenting is an international child advocacy group with but one cause: a rebuttable presumption of shared parenting in family law. We have a strong group of practicing family lawyers, domestic violence advocates, shared parenting researchers, elected officials and others who all support shared parenting. We strongly support MP Vellacott's proposal and will work with him, along with the 80% of Canadian's who support shared parenting, to see it enacted in Canadian law. Others who are interested can learn about the amazing women who support shared parenting at www.lw4sp.org.

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    1. Dear Leading Women, thank you very much for your comment and congratulations for supporting Mr. Vellacott's bill. You are certainly entitled to your opinion, and although I was going to say something catty like

      "Phyllis Schalfly is one of your supporters. 'Nuff said."

      I won't. Instead, I will point out that you offer no explanation as to why you disagree with my opinion - which you are welcome to do, free speech is valued in Canada as much as it is in the United States - and instead suggest that the weight of popular opinion supports your view. However, with the greatest of respect, the fact that popular opinion supports a particular view does not mean that the view is correct.

      Thanks for taking the time to write.

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    2. Oh, and in Canada, we don't go by "attorney." If an honourific is required, and it's not, "Mr." will do.

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  7. Bravo John-Paul! I agree with you and admire your courage to speak out. Instead of the focus being on either parents "right" we should be looking a what is best for the child. One size fits all doesn't work for many things let alone families. Don't let the haters get you down. You are the most talented, wise and just individual going.

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  8. You mean it wouldn't be in the best interested of your wallet, right?

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    1. As I've said to a previous commentator (please read the remarks of your brethren to avoid duplication):

      "Frankly, the profit motive you allege is irrelevant as well. Family law is a difficult, trying area of the law. If you choose to practice this area of the law, however, you find yourself drowning in work. When I was in active practice, I was referring two to five people a day out to other lawyers, not because I didn't like them or their problems, but because I simply couldn't take any more work. And trials, by the way, are extremely unpleasant. Twelve-hour days and working on weekends for the duration of a ten-day trial is no fun at all. It is horrible work."

      Honestly, I had more clients than I could possibly have handled running a settlement-oriented practice which discouraged litigation and emphasized a collaborative approach. I have no interest at all, nor any financial incentive, to promote strife.

      This inaccurate opinion seems to be another common thread of recent comments. Please, before making further ill-informed remarks, make some effort to verifying the accuracy of your assumptions and prejudices.

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  9. Looks like ol' JP and his cohorts here stand to lose a significant amount of income if equal parenting amendments pass. It is not in a lawyer's best interest to support a bill that would encourage "the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding

    (a) to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a parenting order;

    (b) to inform the spouse of the available resources for counselling, mediation, parental coordination and family arbitration that might be able to assist the spouses in negotiating the matters referred to in paragraph (a) and in co-parenting in the best interests of the child; and

    (c) to discuss with the spouse the advisability of providing for the use of the resources referred to in paragraph (b) in a parenting order.

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    1. I'm afraid that you are not really advancing your case by imputing ill motive to me, or to my colleagues. As I've said to a previous commentator (please read the remarks of your brethren to avoid duplication):

      "Frankly, the profit motive you allege is irrelevant as well. Family law is a difficult, trying area of the law. If you choose to practice this area of the law, however, you find yourself drowning in work. When I was in active practice, I was referring two to five people a day out to other lawyers, not because I didn't like them or their problems, but because I simply couldn't take any more work. And trials, by the way, are extremely unpleasant. Twelve-hour days and working on weekends for the duration of a ten-day trial is no fun at all. It is horrible work."

      I went on in reply to another commentator:

      "Honestly, I had more clients than I could possibly have handled running a settlement-oriented practice which discouraged litigation and emphasized a collaborative approach. I have no interest at all, nor any financial incentive, to promote strife.

      "This inaccurate opinion seems to be another common thread of recent comments. Please, before making further ill-informed remarks, make some effort to verifying the accuracy of your assumptions and prejudices."

      Honestly, I don't think that personal attacks help your position much. Your argument that lawyers will lose income if the bill passes does not mean that the bill is itself in the best interests of the children. That's actually an entirely separate issue.

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  10. I am just going to chime in here. This bill still allows for arguing against shared parenting/custody when it is not in the best interests of the child. This bill simply makes it the applicants job to prove that it is NOT in the best interests of the child to have that sort of arrangement. So you will have to explain better why this isn't beneficial. Children have a right to an equal relationship with their parents, unless it is not in their interests (abuse or other).

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    1. Why don't you read my follow up post from 20 December 2013, "Why There is No Place for Presumptions of Shared Parenting in Family Law: A Polemic for the Holiday Season." That might explain my view a little better than I evidently have.

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  11. There are outlying consequences of the current family court system that Mr. Vallacott's bills seeks to address that you have either ignored or understated thus far. 1. Parental alienation 2. Abduction. 3. Wide spread child abuse from the residential parent and / or the residential household. 4. False allegations of abuse 5. The *encouragement* of professionals from child psychology, social services and the public for parody with successful court laws from around the globe of a similar presumption and for increased access from both parents 6. Unethical and opportunistic lawyers. 7. A financially and logistically dysfunctional family court system (no one thinks it can be sustained) 8. A lack of consistency among judges. 9. A lack of evidential due process 10. Inappropriate language in the current law (visitation, etc) 11. That the majority of children want both parents, not a visitor.

    I will address your bullets.

    - where there has been a history of family violence, in the broad sense of the Family Law Act definition;
    *This is covered in Vallancott's bill. its in the title of the bill
    - where the parents are engaged in high levels of conflict;
    *Unethical lawyers -that exist by your own admission- manufacture conflict. You havent addressed this.
    - where a parent has taken a hands off approach to raising the children;
    *This is irreverent to the bill in question. prove otherwise.
    - where a parent is dealing with an addiction or another serious mental health concern;
    *Sickness may lead to abuse most likely neglect. The bill covers abuse
    - where the parents have irreconcilable opinions about matters essential to the raising of their children;
    *This is not a good reason for anyone parent to not argue for custody. We don't agree, so you take sole custody. Really?
    - where a parent's work schedule requires long absences;
    *Irrelevant! Those parents do not petition the court for custody.
    - where there have been threats to abduct the children; or,
    *This bill has stronger laws for abduction.
    - where a parent has shown no interest in the children after separation.
    *Irrelevant! Those parents do not petition the court for custody.

    you have ignored canadas own report for change from 1997, in favor of acting like everything is fine
    http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=1031529&Language=E&Mode=1&Parl=36&Ses=1&File=6

    I am not convinced. I have NEVER seen a reputable study which didn't recommend shared physical custody as being in the best interests of the child.

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    1. PART I

      I'm not particularly bothered by your opinion that I have ignored or understated issues that are on your agenda. Thankfully the web is a big place and you can dwell on those issues until your heart is content. Nevertheless, since I think you've asked for my thoughts on these issues, I will give them to you.

      1. Parental alienation. This is not nearly the pervasive problem people think it is. In my experience very, very few people are prepared to abuse their children in this manner. Those who are prepared to do so are not going to be stopped by a presumption in favour of shared parenting.

      2. Abduction. For matters within Canada, this is already covered by the Criminal Code. For matters outside of Canada, Canada is a signatory to the Hague Convention on child abduction. The issue is already dealt with. Besides, if someone wants to abduct a child, how would a presumption of shared parenting stop them?

      3. "Wide spread child abuse from the residential parent." I have no idea what you are talking about, but if someone is abusing a child, we deal with that through our child protection legislation and the Criminal Code. I suppose you are suggesting that with shared parenting a child would be abused 50% less, but I think that the better solution would be to not give that parent any contact with the child at all.

      4. False allegations of abuse. I can't see how a presumption of shared parenting would affect this. Professor Nick Bala, in his 2007 Journal of Family Studies paper "Sexual abuse allegations and parental separation: smokescreen or fire?," reviewed the research on false and found that of claims of abuse made to child welfare authorities, only 4% were intentionally false. Of that 4%, 9% of the claims were made by custodial parents and 15% were made by non-custodial parents.

      5. "The encouragement of professionals." I'm not quite sure what you're saying here, but if you are saying there are studies in favour of a presumption of shared parenting, yes there are. There are also studies that show that no particular parenting arrangement should be presumed to be in children's best interests.

      6. Unethical and opportunistic lawyers. Yes, they exist. I may have run into two or three lawyers I thought fit into this category in thirteen years of practice. The rest, the vast majority of my colleagues, are honourable people whose primary interests are justice, the welfare of their clients and the well-being of their clients' children.

      7. A "dysfunctional" family court system. I assume you are talking about the Provincial Court of British Columbia, because "the family court system" means enormously different things in different jurisdictions. I will agree that our family court system is underfunded and understaffed. That does not mean it is dysfunctional; it means that the provincial government needs to rethink its funding priorities. The Provincial Court does an extraordinarily good job, despite the enormous pressures it is under. In any event Vellacott's bill doesn't purport to reform or do away with a system you say is dysfunctional. In fact, the presumptions he proposes are required only of judges. If you think you would benefit from a presumption of shared parenting, you'd have to be in court. Oops.

      8. Lack of consistency among judges. Until we have a court system where justice is dispensed by computer there will always be judges who have different views than others. Even the judges who would be interpreting Vellacott's proposed amendments will have different views on their meaning and application.

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    2. PART II

      9. Lack of "evidential" due process. I have no idea what you mean. If you are saying that there are issues with how evidence is adduced at trial - sorry, that's my best guess - a presumption of shared parenting isn't going to fix this. The rules of court are where changes would need to be made.

      10. Inappropriate language in the current law. I'll agree with you on that but you need to actually know our law before you complain about it. Our legislation doesn't talk about "visitation." That said, "access" is no better. However, Vellacott's bill does a lot more than improve the language we use to talk about post-separation parenting, and those are the parts I can't get behind. There are less drastic ways to change the terminology our legislation uses without including an ill-conceived presumption in favour of shared parenting.

      11. The majority of parents want both parents. That seems reasonable. Oddly, at present the vast majority of separated children actually have both parents. Very few children are deprived of a relationship with a parent, and when that happens the circumstances are pretty grim and those parents are generally people for whom a presumption of shared parenting would be least appropriate.

      To continue with your other points.

      12. Family violence. The title of the bill is "An Act to amend the Divorce Act (equal parenting) and to make consequential amendments to other Acts." I have no idea what you are talking about.

      13. Unethical lawyers. See my reply to your sixth point; I have also addressed this point in my replies to other comments with similarly ill-informed views about lawyers.

      14. "Where a parent has taken a hands-off approach." I say this factor is relevant because I think you wouldn't want someone with limited parenting experience involved in a shared parenting arrangement. As well, I don't have to "prove otherwise." I'm under no obligation to you and I am entitled to my own opinion, even though I think it is a fairly self-evident point of view.

      15. "Where a parent is dealing with an addiction." The point I was trying to make is that there are circumstances in which shared parenting would not be appropriate. Given that the bill makes such a presumption rebuttable, addictions and their sequelae are of course things that the court would take into account as part of its analysis of the child's best interests. That doesn't diminish my point.

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    3. PART III

      16. Parents with irreconcilable opinions. No, you're right, as you have paraphrased my point this on its own is not a good reason why a parent should "not argue for custody." However you're missing the point. I was talking about "irreconcilable opinions about matters essential to the raising of their children," not whether it's rubber boots or running shoes. This is a factor that might suggest shared parenting would be inappropriate, not a determining criteria.

      17. Long absences due to work. "Irrelevant!," you say, "these parents do not petition the courts for custody." Excellent point. Then wouldn't a presumption of shared parenting be inappropriate in such circumstances?

      18. "The bill has stronger laws for abduction." You've read the bill, right? I assume you know that it doesn't say anything about abduction. My point, though, was that perhaps a presumption of shared parenting wouldn't be particularly appropriate where a parent has threatened to abduct the children. This somehow seems reasonable to me.

      19. "Where a parent has shown no interest in the children." See my reply to your seventeenth point.

      20. I have ignored a report from 1997 and act like everything is fine. I'm not obliged to reference, consider or opine upon parliamentary reports. You would not believe the laundry list of other parliamentary reports I have not referenced in writing the above post. In any event, do I think "everything is fine?" No. I don't. All you have to do is spend a few minutes browsing through the other content on my blog to discover this interesting fact. However, I do not think that the family law system in Canada will be fixed by a presumption of shared parenting; the central point of my post is that it would be worsened.

      21. You are not convinced. That's fine, you are entitled to your opinion too.

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  12. Tim Legere6/5/14 5:30 PM

    Dear Mr. Boyd,

    I'm curious to know if any of the following studies might cause you to adapt your, or perhaps the CBA's position on Bill C-560 on Equal Sharing. I understand from your previous comments that you (and the CBA) believe that the Bill elevates the "Rights of the Parents" over the "Best Interests of the Child". However, it would seem (based on a growing body of research - see links) that the "Best Interests of the Child" may best be served when they maximize time with both parents. As such this suggests it would be the most common "custody arrangement" selected by the court except in cases where there have been issues of abuse, etc.

    Links:

    http://equalitycanada.com/scholarship-demonstrates-perils-of-discretionary-best-interest-approach-to-custody/

    http://equalitycanada.com/wp-content/uploads/2014/05/D.-BRAVER.pdf

    http://www.theage.com.au/national/empty-days-lonely-nights-20140428-37e3e.html#ixzz30xYoqrfw

    Finally, are you familiar with any of the work being done by Edward Kruk who is an Associate Professor of Sociology at U of BC? He is the inaugural President of the International Council of Shared Parenting (see link below). I am interested in your thoughts on these initiatives and how they might (if at all) effect the debate in the House of Commons tomorrow.

    http://twohomes.org/en_home

    Thank you for your continued efforts in producing these materials and blog. I have found much of the information very helpful to me as a layman, unable to afford a lawyer and while within the labyrinth of Family court.

    Sincerely,
    Tim Legere

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    Replies
    1. Hi Tim, thanks for your comment. I think you're right, that in general it is in children's best interests to spend as much time with both parents as possible. However, the point I am trying to make is that you simply cannot apply that blanket statement to all children in all circumstances, and that it is best to have no presumptions at all. The Divorce Act, at s. 16(10), already says that children should have as much time with each parent as possible. Here is what it says:

      "In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child..."

      But the important part is that last bit: "as is consistent with the best interests of the child." I have no problem at all with the idea that children should have as much time with each parent as possible. But it can't be on a cookie cutter basis that assumes that disinterested, alcoholic, abusive, absentee, drug-addicted, molesting or mentally-ill parents should have shared custody as a starting assumption.

      I support custody arrangements when they are in the best interests of the child, as they often are. I cannot support a one-size-fits-all assumption to that effect, and that's my only concern.

      I'll take a read of the materials you've provided links to, and thank you for that. However, the scholarship on this issue is far from settled, and if there seems to be any general common thread in the literature, it is that no one parenting model is best for all children.

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  13. Tim Legere7/5/14 9:17 PM

    Dear Mr. Boyd,

    Thank you for your reply.

    I would like to think that the large majority of separated/divorced parents are: interested, not alcoholics, non-abusive, fully engaged, not addicted to drugs, do not molest their children, are not mentally ill and wish to have shared custody of their children because they love them and believe their presence/involvement is in their child's best interest.

    As such, then shared custody would seem to be the most common outcome and therefore serve as the presumptive approach unless proven otherwise.

    However, I agree that it is NOT (and can never be) a "cookie-cutter" application and that any/all concerns would be raised by parents for review by the courts before such an order (i.e. shared/equal parenting) is applied.

    I often wonder if those in the justice, medical and military fields, by being continually exposed to the "worst of people" (i.e. when they are under high stress, etc.), might develop a tendency to view the majority of people in that manner (i.e. as "bad"). I concede that exposure to situations where no issues exist could also lead some to form equally invalid opinions/biases.

    Finally, I am hopeful that the scholarship on this topic will increase in the future (e.g. similar to that being undertaken by Professor Kruk) regardless of the outcome of Bill C-560 and that any future recommended presumption (e.g. perhaps by the CBA) is based on unequivocal "science".

    Sincerely,
    Tim Legere

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  14. Unfortunately we again disagree.

    Of course the large majority of parents are not disinterested, unengaged, alcoholic or abusive. However, I'm not prepared to gamble the wellbeing of even the small minority of children on that fact.

    The reality is that parents come in all different sizes, shapes, competencies and histories of involvement in their children's lives; they range in skill from the incompetent and obviously hazardous to the benevolent and mythically ideal. As a result, there are lots of circumstances in which shared parenting is best for children, and there are many other circumstances in which it is not and it risks the wellbeing of children to presume otherwise.

    Parenting arrangements cannot be approached from a one-size-fits-all approach. They must be tailored to the specific needs and circumstances of the specific child and his or her family.

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  15. Hi, I realize that you dont give legal advice on here, but please allow me to ask a general question:
    Dad has never had an ongoing relationship with 3 year old daughter.
    Daughter lives over 600kms away with her mother, and has always lived with her mother.
    Dad is asking courts to allow child to live with him 50% of the time.
    Would the bc courts ever allow this to happen? Mother is very concerned.

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    Replies
    1. In a hypothetical situation like that, it is highly unlikely that an absentee parent would be given parenting time of that magnitude. In the cases I've had where a parent has been completely gone from a child's life, I've usually obtained orders for gradual reintroductions, facilitated by a counsellor. An equal or near-equal distribution of parenting time is possible, but not until the parent has established a relationship with the child; parenting time is a privilege not a right.

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    2. But with a gradual reintroduction it would make more sense if the father lived around right? He is an 8 hour drive away, so he would have to commit to spending a few months in the childs town in order to do a gradual introduction....I would think? And then I just dont see how it could be good for the child to leave 8 hours away from her mother for at least 2 weeks at a time. He also has mental health issues, possibly drug use, and has been charged with sexually assulting a 13 year old girl (was never conviced for some reason)

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