20 December 2013

Why There is No Place for Presumptions of Shared Parenting in Family Law: A Polemic for the Holiday Season

A few days ago, I wrote about a new private member's bill presently before the House of Commons which, if passed, would amend the federal Divorce Act to
  • require judges to presume that an equal distribution of a child's time between separated parents is in the best interests of the child; and,
  • prevent judges from making orders for unequal distributions of time unless they conclude that the child's best interests would be "substantially enhanced" by such an order.
In that post, I expressed the view that such presumptions would not be in the best interests of children, which triggered a impassioned but sarcastic comment from an anonymous reader expressing a contrary opinion. A recent conversation with a colleague, a researcher from Victoria, has helped crystallize my reasoning, and and in this post I will elaborate on my earlier views.

As an initial step, I think it is important to appreciate the vacuity of the arguments in favour of shared parenting used by most men's groups. In essence, the argument usually goes like this. Equal parenting is in the best interests of children because it is fair, and it is fair because it is equal. The problems with this logic, apart from its circularity, are that it is really the interests of the parents which are served by mathematical fairness in the division of a child's time, and that it presupposes that an equal division of the child's time is prima facie in the child's best interests. Most of my male clients who have held this view have been unable to articulate any concrete reasons why their children's best interests would be best served by an equal division of time other than that the division of time would be equal.

Next, men's groups usually point to the fact — and it is a fact — that most separated mothers have their children for most of the time, and claim that this is evidence of an institutionalized judicial bias against men. There are a number of problems with this argument. Firstly, a statistical distribution of parenting time is not evidence of anything other than the distribution of parenting time. You have to go a fair bit further to prove motive in order to conclude that bias actually exists, and so far this is where the men's rights groups have fallen short. (65.6% of the Justices and Masters of the British Columbia Supreme Court are men, by the way.) Secondly, there are social and economic factors that provide a far more compelling explanation of this statistical distribution other than the existence of a secret judicial pact against men. 

Five or six years ago, a television station interviewed me on the question of judicial bias against men, just in time, if you can believe it, for Fathers' Day. What I told them was this. Given that:
  • women are still underpaid, over-represented in pink-collar jobs, and make something like $0.70 for every dollar men earn;
  • mothers lactate (men still have difficulty in this regard); and,
  • we continue to enculturate our children to the expectations that men are the breadwinners, working outside the home to support the family, while women are the rearers of children and keepers of home,
it's hardly surprising that when a financially stable couple have a child, they make the rational economic decision to have the lesser-earning parent, who happens to be able to feed the child from her own body, stay home to raise the child. Of course, when EI's paltry parental leave benefits expire, these couples often opt to continue this distribution of labour. If parents separate in common circumstances like these, the distribution of labour prevailing during the relationship frequently survives the separation; one parent continues to be the children's primary caregiver and the other continues to satisfy the family's financial needs. However, if the parents cannot agree on how the children's time will be shared, they'll go to court for a resolution if they can't find another way of handling the problem.

The first judicial decision on parenting time will be an interim decision, a rough and ready decision, made without the benefit of all of the evidence that would be available at trial, that is meant to last only until the next interim decision or until trial. Without very compelling evidence that another arrangement is in the best interests of the children, that a parent is unreasonably withholding or limiting the other parent's time with the child or that the parents have moved too far away from each other to make it work, the court quite frequently makes an interim order that continues the previous parenting schedule for the time being. Orders to this effect are usually fairly sensible. They preserve the status quo that the parents have established between themselves, without judicial intervention, and preserve the children from a significant change in their parenting arrangements.

To summarize this somewhat, the decisions couples make as to how they divide their labour as parents often has a direct effect on how their labour and their children's time is divided after separation. If a couple make the decision that one of them will stay home to raise the children, that parent is usually the mother for a number of very good economic and social reasons, and that parent usually continues to be the primary caregiver after separation. This does not mean that men are poor parents or that there is a judicial conspiracy against men. It is, by and large, a reflection of the rational decisions the parents made themselves.

In my view, as a lawyer who practiced family law exclusively for thirteen years, there is an unwritten presumption in favour of joint custody and, under the old Family Relations Act, joint guardianship. Orders for sole custody and sole guardianship were generally only made where a parent was absent, where the conflict between the parties was very high, where there was a history of family violence or where a parent was addicted, had serious mental health issues, or suffered from some other obvious parenting deficit. This makes a lot of sense, as orders for joint custody and joint guardianship reduced the conflict between parents by avoiding the winner/loser implications of an order for sole custody to one parent and access to the other, and gave the parents and the court the ability to make finely-tuned adjustments to the children's parenting arrangements though the details of the order for joint guardianship.

Orders for joint custody and joint guardianship did not imply that the children's time would be equally split between their parents homes. When the court is asked to make a decision about parenting time at trial, the court must make its decision considering the specific circumstances of each specific family and how those circumstances relate to the children's best interests. Thankfully, there is usually an abundance of evidence on these issues at trial and the court makes its decision taking into account that evidence and the specific factors relating to the children's best interests set out at ss. 37(2) and 38 of the Family Law Act (formerly s. 24 of the Family Relations Act), and, if the parents are married, the children's best interests and the principle that the children should have as much contact with each parent as is in their best interests, set out at s. 16(8) and (10) of the Divorce Act. In general, the court looks at:
  • which parent was the primary caregiver during their relationship;
  • the parenting skills and experience of each parents;
  • the degree of bonding between the children and each parent;
  • the children's need for stability and security, often in relation to the ages of the children;
  • the degree of conflict between the parents and their ability to cooperate and communicate with each other;
  • the presence and nature of any family violence;
  • the existence of any serious parenting deficits such as addictions and so forth;
  • the wishes of the children;
  • the children's cultural, linguistic and spiritual heritage; and,
  • the parents' abilities to spend time with the children.
Consideration of the circumstances of separated families in light of these factors has resulted in an enormous range of parenting orders, with all manner of distributions of the children's time. Some parents see their children a lot, other see their children less often. And when it is in the children's best interests to do so, and the parents are sufficiently mature to be able to cooperate and work together, the children's time will be shared between the parents more or less equally. Whatever the distribution may look like, when the court must make an order on the subject, it does so according to the specific needs of the specific family before it.

Interestingly, I have noticed a trend toward shared parenting over the past five or six years. Parents are increasingly making agreements for shared parenting and the court is increasingly making orders to that effect. The range of the shared parenting arrangements I have been involved in is enormous, and includes a rotating two-week pattern of two days, two days and three days, a rotating two-week pattern of three days and four days, a stable one-week pattern of three days and four days, a rotating two-week pattern of two days and five days, a week-on week-off pattern, a two-week-on two-week-off pattern, and so on. 

I have had many clients for whose children shared parenting has worked very, very well. Likewise, I have had many clients for whom an effort toward shared parenting did not work, and many clients for whose children an unequal distribution of time was best. The factors that militate in favour of shared parenting include:
  • parents with similar work schedules or commitments;
  • parents who live relatively close to each and to the children's school;
  • parents who are able to work together, can reach compromise without ill will, and put their children's interests ahead of their own;
  • parents with a significant histories of involvement in parenting the children; and,
  • the children's expressed wish to live with both parents equally or near-equally.
However, having established that shared parenting works very well for some people does not mean that it therefore works well for everyone. The factors that tend to militate against shared parenting include:
  • a parent with shift work or an unpredictable pattern of work-related absences from the home (a stable parenting schedule cannot be made);
  • parents who live more than thirty or so minutes away from each other (the children will grow to resent lengthy trips between parents' homes);
  • a parent working full-time and the other parent not working outside the home or working part-time (why should the children be in daycare when the other parent is available to care for them);
  • the conflict between the parents is excessive (children should be shielded from conflict between their parents to the maximum extent possible);
  • problems in a child's relationship with a parent (the child will not wish to spend an equal amount of time with each parent); and,
  • a parent who has not previously contributed to or been involved with the raising of the children (the parent may lack the skills required to care for the children for extended periods of time).
Contrary to the view of my anonymous commentator, there are no presumptions that mothers should be primary caregivers (the number of men who stay at home and adopt the role of primary caregiver continues to climb, although they continue to be relatively few in number) and that fathers should only have their children every other weekend. It is true that most separated mothers have their children for most of the time, however, there are a number of important social and economic reasons why this is the case, none of which involve judicial basis.

Similarly, there should be no presumption in favour of shared parenting, and the four most significant reasons I see for this are that:
  • it is not in every child's best interests to have an equal amount of time with each parent, some children need more stability, some parents live too far away from each other;
  • it is not the case that both parents in a family are equally skilled at parenting, some parents are less competent, some parents have been less involved in raising the children; 
  • it may be contrary to the children's best interests, and potentially even harmful, to impose shared parenting arrangements on interim applications when so little evidence is available to the court; and,
  • the parenting arrangements that are best for the children of a specific family should be determined in light of the specific needs of those children and the specific circumstances of that family.
In a nutshell, it would do a gross disservice to our children to presume that the same parenting schedule is in the best interests of all of them. Their needs and interests must be considered and assessed individually, which is precisely what a system without presumptions affords. The provisions of s. 40(4) of the Family Law Act are entirely appropriate, and if the Divorce Act must be amended, the bill could do no better than adopt the language of the provincial statute:
In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:
(a) that parental responsibilities should be allocated equally among guardians; 
(b) that parenting time should be shared equally among guardians; 
(c) that decisions among guardians should be made separately or together.
Update: 27 December 2013

As you will see from looking at the comments to this post and to another recent post, "Equal Parenting Amendment Bill Tabled, would Amend Divorce Act," discussion of the issues I have raised has primarily dwelt on the fathers' rights perspective that children's time should be presumed to be split equally after separation. Although you will note that the arguments thus far have centred on unfairness to fathers rather than children's best interests, this bugaboo myth of the "weekend dad" keeps coming up as the purgatory fathers are assigned to in the absence of a shared parenting presumption.

From my perspective, the "weekend dad" is a straw man set up by fathers' rights groups to more dramatically contrast its shrivelled parody of fatherhood with the effulgent wholesomeness of "shared parenting dad." In reality, this all-or-nothing dichotomy between weekend dad and shared parenting dad does not exist. At least, it doesn't exist in Canada.

Yes, there is every-other-weekend dad, as cast by the fathers' rights groups. This is the sort of time a disengaged, disinterested father would get, and that's the real stereotype of weekend dad. However the variety of actual arrangements for the distribution of children's time between separated parents is almost limitless, and this variety exists precisely because most fathers are not disengaged and disinterested and it is in their children's interests to see them more than two weekends out of every four. More often than not, an every-other-weekend parenting schedule includes things like
  • three-day weekends, rather than two-day weekends,
  • evening parenting time during the work week, ranging from one or two evenings in the off-week to one or two evenings every week,
  • every other weekend, supplemented by an overnight in the middle of the workweek,
  • every other weekend, plus all or most statutory holidays and professional development days,
  • three weekends every four weeks instead of two,
  • half or most of the summer school holidays,
  • more than half or all of the spring and winter school holidays
and so on. As well, these parents will usually be going to their children's school and sports activities, regardless of when in the week the activities fall. They will be speaking to the children by telephone or Skype multiple times each week. They will write to the children by text, email and chat. They will be involved in the children's extended family and will attend family events with their children. They will be involved in making important decisions about the children's schooling, health care, sports and other extracurricular activities, linguistic and cultural heritage, counselling, therapies and treatments. These parents have not been disenfranchised from fatherhood; they are active, involved participants in their children's lives.

To be completely clear, the possible arrangements of children's time is not the false dichotomy of shared parenting dad versus weekend dad. Not at all. There are a ton of alternate arrangements and ways of distributing children's time between their parents that are rather commonplace and are not the estranged weekend day that fathers' rights groups rely on to such exaggerated effect.

Update: 28 December 2013

To carry on with my comments about active, engaged fathers, I was pleased to see that a report in the Calgary Herald on a recent study from the US National Center for Health Statistics which found that the "detached dad" is "mostly a myth," and that fathers "are quite involved in a variety of different and important ways." Key findings among fathers living with children younger than five were that, with respect to their children:
  • "Nine in ten fathers bathed, diapered, helped them use the toilet or get dressed at least several times weekly."
  • "Almost two out three read to them at least several times weekly."
Among fathers living with children aged five to eighteen, the study found that:
  • "More than nine of out ten ate meals with them at least several times weekly."
  • "Almost two out of three helped with homework several times weekly."
  • One in three "took their kids to or from activities" several times weekly.
The data used in the study was self-reported and in the absence of objective verification should be taken with a grain of salt.

Update: 24 May 2014

Commenting on this post is now closed. 

47 comments:

  1. Theres no justifiable reason for not giving equal access from day one of most separations. For any parent, to go from being a full participant in their children's lives on a daily basis, to being progressively removed form their children's lives is unacceptable. Biased interim orders that establish primary access to the primary care giver, and then lead to a "status quo" based on that interim order that is eventually upheld in trial is inexcusable.
    The interim order should state joint custody from the start, and the status quo the couple then establish prior to trial should be upheld.
    Unfortunately the financial implications of shared access would require the lesser earner in the family to seek employment, something they probably were doing before they were marriage and children. Sadly its too lucrative, and highly motivational for the parent who is awarded primary custody in the interim to have that parent agree to less time with their children and less financial support come trial.
    Conclusion: The premise should be joint access/custody. Let the parents iron out the custody between interim order and Trial, and let the financially disadvantaged parent get back to work and begin to regain their career status. No parent should be excluded from 50/50 access at the interim order, it sets an irreversible precedence we all know is very difficult to change.

    -Gernot Bremermann

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    1. Actually there are a lot of reasons why parents don't have equal time with their children from day one. I have listed a few of them in the article you are commenting on.

      Nevertheless, when both parents are "full participants in their children's lives on a daily basis," I would be a lot more inclined to agree with you. In cases like that, the justifiable reasons would include a parent's alcoholism or another addiction, serious mental health issues, family violence, excessive interparental conflict, and one parent working full-time while the other parent is not employed.

      As I have indicated, the court does not have a bias either against men or against shared parenting. The reasons for the distribution of children's time vary from family to family, often based on the parenting situation that prevailed during the relationship, but for many other reasons as well. When parents cannot agree and must go to court, the court's decisions are made based on the needs and circumstances of each of the families before it.

      I'm afraid that your conclusion is based on invalid assumptions and faulty reasoning. For many families shared is what is best for the children, but you cannot generalize this fact to all children in all families, and that's where the wheels fall off the bus when it comes to every one-size-fits-all presumption of post-separation parenting time.

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    2. "Biased interim orders"? I assume you mean biased 'cause you didn't get "primary access," whatever that is. Saying that judges are biased is a pretty heavy accusation. Put your money where your (loud) mouth is and cough up the proof that judges are biased, Gernot.

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  2. I think you are right in that the law is biased against the "male/provider" role which is more the norm than otherwise. As a layperson, please understand where most of us are coming from. We took our role within the family unit as the provider, but after divorce there is no longer a provider/ nurturer dichotomy. Both parents become (or at least should) both provider/nurturer. What we need from family law is a realization of this situation. We need laws that reflect and recognize this fundamental change in the family unit. Shared parenting, when possible, needs to become the goal for family courts. It obviously may not always be possible, but it should at the very least be something the courts should be striving towards. This opinion is coming from a man who was the non-custodial parent with every other weekend visitation who eventually was able to get my daughter away from a very unhealthy situation. But it was extremely difficult and quite expensive. It was understood by everyone how much more difficult it was because I was coming from the provider side (yes, male).

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    1. Hi Chris, thanks for your comment. I do get where you're coming from. I have had many clients who have had the same thing happen to them; they bust their hump providing for the family week in and week out, and then when the family separates a court looks at who was at home caring for the children, and makes an order accordingly. Believe me, I get this.

      The problem, however, is that the laws on family law issues are, at least in Canada, predicated first and foremost on the best interests of the children. What's good for them does not always align with what the provider parent perceives as fair. The law does understand this situation, but as long as the legal the test is what's in the best interests of children not what's fair for their parents, this sort of result is going to be common place.

      I have no problem at all with shared parenting. As I've said, there are lots of children who absolutely thrive under a shared parenting regime and there are lots of parents who are mature enough and have good enough communication skills to make it all work. And, as I've also said, the number of orders that work out to an equal or near-equal split of the children's time is on the rise, at least in Canada.

      However, establishing shared parenting as a legal presumption is not the solution. The court needs the discretion to make orders that appropriate for the unique circumstances of each family before it.

      If I could be so bold, one obvious solution to the dilemma would be to address the social and economic factors which make mothers the statistically predominant caregivers during our relationships. Women need to be equal participants in the workforce to address the economic incentives that keep mothers, for the most part, at home, and fathers, for the most part working away from home. As a society we need to begin establishing solid role models for men as nurturing parents, rather than mocking fathers as we do in The Simpsons, Married with Children and in the countless ads that paint fathers as buffoons. By the same token, men do need to pick it up at home and be more involved with the minutiae of their children's lives, which includes doing laundry, wiping butts, booking doctor's appointments, brushing teeth, reading stories and going to parent/teacher conferences. The present general distribution of children's times between their parents is largely a direct outcome of the social and economic factors that contribute to the distribution of labour in the intact family. Until that changes, the decisions the court makes ought not.

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  3. Very well said JP! I would only add two small points: 1) in the same way that one parenting plan doesn't fit all children, one parenting plan often doesn't fit one child all of the time....it is great when parents can recognize that their children have different needs at different stages in their development, equal parenting time may not work now, but it may work in a year or two.
    2)After 34 years in family law as an advocate for both fathers and mothers, as a child advocate, and latterly as a neutral mediator and parent coordinator, I can honestly say I would love it if parenting issues could be solved as simply as saying "equal time to each parent" and I think most lawyers would agree with me. I have yet to meet a lawyer who thinks any amount of money is enough to get into a parenting time fight....but the reality is that different kids have different needs, different families have different issues, and frequently parents have difficulty in distinguishing between what works best for them and what works best for their kids.

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  4. And of course all the child murders in Australia is a good reason to oppose it too, right JP?

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    1. 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

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    2. Thanks. It was off-hand.

      I can only find the first article you listed: "Suffer the little children,". It is media exposé that shows an individual tragic story that occurred before Australians shared presumptions laws were implemented (the murders in that story occurred in 2004, Shared Parenting Presumptions were instituted in 2006). Also, the father in that case did not have shared custody.

      Do you have links to the other 2?

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    3. I only have the articles in hard copy. I amazed you were able to find a link to the first one because I searched the Age archives thinking I'd be able to track it down. The other reference source is:

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

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  5. Gernot and Chris make valid points at the heart of the issue:

    "Biased interim orders that establish primary access to the primary care giver, and then lead to a "status quo" based on that interim order that is eventually upheld in trial is inexcusable"

    "We took our role within the family unit as the provider, but after divorce there is no longer a provider/ nurturer dichotomy. Both parents become (or at least should) both provider/nurturer. What we need from family law is a realization of this situation. We need laws that reflect and recognize this fundamental change in the family unit."

    Boyd's response to this:

    "If a couple make the decision that one of them will stay home to raise the children, that parent is usually the mother for a number of very good economic and social reasons, and that parent usually continues to be the primary caregiver after separation."

    Except one (if not both) have decided to change the nature of their relationship and the court will presume the status quo until the child is an adult as it stands now.

    I'd like to ask Chris and Gernot if their plan, while they were married, was to have a stay-at-home parent arrangement until their child(ren) were 21.

    We can see from Mr. Boyd's comment below that he is the one who is gender-baiting, (also evident in his Australian child murder comment)

    "By the same token, men do need to pick it up at home and be more involved with the minutiae of their children's lives, which includes doing laundry, wiping butts, booking doctor's appointments, brushing teeth, reading stories and going to parent/teacher conferences. The present general distribution of children's times between their parents is largely a direct outcome of the social and economic factors that contribute to the distribution of labour in the intact family. Until that changes, the decisions the court makes ought not."

    Who says they don't? If a parent could simply show evidence that he did those parenting related tasks, then he/she could ask the court for shared arrangement no questions asked? Or, perhaps Mr. Boyd is suggesting we have to wait for sitcoms to show our legal systems "how men are"?

    Ps. Mr. Boyd's anonymous poster NEVER said anything about gender bias in the court. We could all see that had he not censored comments.






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    1. Dear Robert, again you complain that I have "censored" your comments. Since this is not a public forum, I assume that you are implying that I have not posted one or more of your thoughtful submissions. Please check again. If have overlooked any of your comments, please send the comment again and I will be sure to post it.

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  6. Dear mens rights people - I'm getting pretty sick of your nattering about equal time is fair. Did you do equal time in your relationship, or did you huff off to the office everyday while your wife cooked meals, did laundry, and took care of your screaming puking crapping kids all day? Did you come home at night after a 'hard day' and crack a beer and watch the game? Your wife didn't get a break today. Kids are more work than anyone can ever imagine, and frankly, most of you men are like having another kid who wants a maid, house keeper, and a whore for when you come home. If you want men to get 50-50, I mean really want it, then become a feminist. Rally for equal pay for equal work. Then when the time comes, you can 'get' to stay home with your kids and wipe asses and clean puke out of your hair. Keep this in mind. YOU wanted your wife to quit HER career and stay home with YOUR spawn.

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    1. "If there is a divorce in the family, I urge a presumption of joint custody of the children. Whereas it is impossible to change thousands of years of sex-role stereotyping through legislation, we can hope, in an existential fashion, that attitudes can be changed through education and the passage of laws."

      -Karen DeCrow, American feminist attorney, President of the National Organization for Women
      http://en.wikipedia.org/wiki/Karen_DeCrow

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    2. Thanks for the quote from Ms DeCrow. I suppose the question is the relationship between the best interests of children and her vision of changing "thousands of years of sex-role stereotyping."

      She's right about the "thousands of years" bit. Laws formalizing the subjugation of women have been present in every written law on domestic legislation in recorded history, from the Code of Ur-Namu to the Roman Civil Code to the 1857 English Divorce and Matrimonial Causes Act. The same is true in Canada, from the early laws of Upper Canada and Lower Canada until the 1985 federal Divorce Act and the 1978 provincial Family Relations Act. We have made great strides in this country toward the elimination of sexist legislation. The Charter of Rights and Freedoms has been instrumental in this regard, and the 2013 provincial Family Law Act is one of the most progressive pieces of legislation I have ever read. In fact, it was its 1978 predecessor which abrogated all of the misogynist common law principles applicable to domestic relations.

      That said, as I have pointed out there are still a great number of factors, ranging from the popular media (look at the messages in Leave it to Beaver, never mind The Simpsons!), to contemporary religion (those of the fundamentalist variety tend to have very much of a barefoot-and-pregnant bent) to economics (consider women's predominance in low-paying pink-collar jobs, for example), which have entrenched and continue to reenforce stereotyped sex-roles. Frankly, these factors are far more influential in maintaining stereotypes than the legislation on domestic relations.

      Even were this not the case, I'm afraid I have trouble grasping the connection this quote seems to draw between a statutory presumption of joint custody and sex-role stereotyping in contemporary society. I have even more trouble understanding how this concern - which would be a serious concern if it existed - trumps a system focussed on the best interests of children. Is changing the Divorce Act in the fleeting hope of affecting a problem that has deeper socioeconomic roots elsewhere really worth the risk of putting children into harmful situations? With all due respect to Ms DeCrow, I don't think so.

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    3. The first poster, suggested that becoming a feminist would help. I quoted one of the most famous feminists who disagrees with the original poster, and you. Why are you having trouble seeing the significance? I think Ms DeCrow knows more about women's struggles than you.

      Here is an even more prominent feminists views on the subject. I'm sure every feminist has heard the name Gloria Steinem, and here is her quote:

      "it was clear from the feminist writings and ideas of the '60s and '70s that joint custody was what we supported after a divorce."

      I find your justification based on media portrayal to be backwards and offensive. Should we base are legal presumptions on portrayals of minorities too? Should we change are laws to reflect what is portrayed in "gangster films" also?

      For someone who attacks his proponents for embracing gender ideologies, you seem to be hypocritically going out of your way to support the opposite one.

      Your argument boils down to this: Men are *likely* to be a Homer Simpson (Just look at the media!) and conversely women are *likely* to be disadvantaged in the workplace, so lets make laws with that presumption.

      And/or just as illogical: Women are disadvantaged in other aspects of society, so why bother dealing with potentially beneficial domestic legislation. It's just small potatoes right now.

      And finally, Shared/Equal parenting presumptions DO NOT increase risks to children, but in fact reduce family violence. Remember, children are more likely to be abused at mum's sole custody household than any other family arrangement.

      Remember too, children have only 2 *real* advocates to protect them, Their Parent(s).

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    4. Also, your history lesson on family law ignores the failed ideology of the Tender years doctrine.

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    5. It ignores lots of things, like the rule of thumb and the suffragette movement. I'm afraid that a comprehensive historical review is not possible, I will always miss something.

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    6. With respect to your earlier comment, what I am having trouble with is characterizing the wish to have a legislated presumption in favour of shared parenting as a feminist issue. I cannot see this as a "gender ideology." It's about children's best interests, not women's oppression. Even if it were about women's oppression, I don't find quotes to be a particularly strong argument for or against anything. Just because someone has said something doesn't make it true.

      I am afraid that you are seriously missing my point. This issue is not about men and it's not about women. It's about children. It's not about women's disadvantage; in fact, I only mentioned this as it seems to be one of the socioeconomic factors which explain why women predominantly take the homemaking role in heterosexual two-parent relationships. I did not advance it as an argument for or against a presumption in favour of shared parenting.

      Shared parenting presumptions do increase the risk of harm to children because of the manner in which interim decisions are made in court. At interim hearings, the court makes a rough and ready decision based on very limited information and often under enormous time constraints. In such circumstances, the risk is that the court would, especially when faced with conflicting evidence, apply the presumption required by statute without fully considering the history of the child's care, the presence of family violence (or lack thereof), the parents' involvement in the child's life, the parents' capacity to care for the child or the parents' availability to care for the child.

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    7. I found it odd you did respond to the original posters "female rights" rant. She seems to feel she owns her children because puke in hair...or something. It seemed to be in line with your earlier rant about beer drinking Homer Simpsons types.

      Re: Harm
      It sounds like your are talking about a custody motion, which in many jurisdictions waits are up to 3 months. We have child protection services, police services and a Criminal Justice system to which by their nature are better equipped to protect children. Family Law should take a secondary approach, by accepting reports by those services. Here is why I would not rely solely on Family Law to protect MY children if I had concerns for their safety (I would go directly to the services I mentioned above):

      1. As mentioned earlier, the Family Law courts are over crowded with couples fighting over the 2 year old leather couch and how to divide it. I would not wait in line for months while my children were at risk, and I'd be doing my children a disservice in doing so.
      2. I would be exposing myself and my family to financial disparity financing a Family Lawyer (in the interim at least)
      3. I would be exposing myself to UNSUBSTANTIATED retaliation from my adversary as is common in Family Court
      4. A "rough and ready" decision may not protect my children if it did not include total removal of them from harms way.

      If you are talking about an emergency motion than why not make the emergency with child protection services, police/ criminal courts?

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  7. The argument that I don't buy into is that if one parent was previously a bread winner they are presumed to be a less capable parent. For example, if after divorce that parent wants to take on a more nurturing role and scale back as a bread winner. Why is that a factor against 50/50? I would look at it as a positive. A parent who wants to be involved and who wants to spend time with the kids should be lauded. The alternative is a parent that doesn't want to spend time with the children. Interesting, this is exactly what my ex-wife says she is thankful for. She is thankful that she has a co-parent who is engaged and involved with the children. We should encourage and support that kind of thinking, not spend our days talking about roles taken on by parents when there was an intact family. The fact is, after a separation and a divorce, the landscape change. We as parents have to re-think our roles in our children's lives and re-think our working arrangements. In my case, I had to really think about what was important. I took on a much more hands-on role with my kids and started my own business. I had to think about what was best for my kids in an environment where my ex-wife and I were no longer living together.

    Looking back at the factors JP listed, I don't think I would have been given much access to my children. Today, each of them would say that they are way better off with me there 50/50 than if I was a weekend dad.

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    1. PART I

      I understand where you're coming from, however I think that I could have expressed myself more clearly. Although there are some parents, including stay at home parents, who are less capable parents, no one (at least not I, my colleagues nor the judges I know) presumes that the parent working away from home is a less capable parent. It is also entirely reasonable that the parent working away from home would want to establish a more nurturing role.

      However, neither of these realities are reasons to establish a presumption of shared parenting, if for no other reason than that not all parents who work away from home want to establish a more nurturing role or are capable being more nurturing. However, where a parent working away from home is a good parent and wants to have a more nurturing role, those factors, in the particular circumstances of that family, support a shared parenting regime.

      I have not said that shared parenting is a bad thing. I have said that it works for lots of children and lots of parents. What is a bad thing is to presume that this is the case for all children in all circumstances.

      I am glad that you took the opportunity of your separation to rethink your role in the family and your role, and your spouse's role, as the parents of your children. That's great, and this sort of agonizing reappraisal happens a lot. And for you, and many other parents, it resulted in reprioritizing your life. This to me is an excellent reason to look at a more equal distribution of the children's time because they will have the benefit of two competent, caring parents.

      The fundamental concern for the courts is always the best interests of the children, not what the parents perceive as fair for themselves, and that is something that many commentators to my recent posts have over looked. It's not about what's fair for the PARENT but about what's best for the CHILD. Because of this hierarchy of concerns, a result is sometimes unfair for a parent. That's unfortunate, but, again, the children come first. In a situation such as yours, the history of the children's care may not suggest a shared parenting arrangement and on an interim basis, the court would probably not order a shared parenting arrangement. However, if you could demonstrate your commitment to putting the children first, your capacity to parent, and that you could be more involved than you had been, those are things that would weigh toward a shared parenting arrangement.

      On a somewhat unrelated note, I should point out that the "weekend dad" thing is a common woe-is-me stereotype advanced by father's rights groups as proof of the diminishment of fathers' child involvement after separation. However, from the perspective of my years in practice, the weekend dad thing isn't all that common.

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    2. PART II

      The possible arrangements of children's time between separated parents are almost limitless. Sure there is the weekend dad. That's the sort of time a disengaged, disinterested father would get, and that's the real stereotype of the "weekend dad." However, more often the arrangements included things like
        · three-day weekends, rather than two-day weekends,
        · evening parenting time during the work week, from one or two evenings in the off-week to one or two evenings every week,
        · every other weekend, supplemented by every Wednesday overnight,
        · every other weekend, plus all or most statutory holidays and professional development days,
        · three weekends every four weeks instead of two,
        · half or most of the summer school holidays,
        · more than half or all of the spring and winter school holidays
      and so on. As well, these parents would usually be going to their children's school and sports activities, regardless of when in the week they fell, and would be speaking to the children by telephone or skype multiple times each week.

      To be completely clear, the possible arrangements of children's time isn't a equal parenting versus weekend dad dichotomy. Not at all. There are a ton of alternate arrangements and ways of distributing a parent's time that are not the estranged every-over-weekend straw man that fathers' rights groups are so fond of.

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    3. I applaud you for changing your life to suit the best interest of your children. Not everyone has done that nor will they do that and that is why I think it's dangerous to say from day 1 of separation everyone splits the kids 50/50. I am a woman and was always the primary breadwinner. When we split and my child's father was required to pay child support he fought me. When he had to pay a percentage of the daycare expense, he fought me. To this day, he blames me for his inability to get ahead because I "suck him dry". He pays the child support amount as per the table and 35% of my child's daycare expenses, that's it. No benefits, no extracurricular activities, no additional expenses, nothing - I pay for everything else.

      My ex has never looked to find a place where my son could stay with him for a day or two. He has not bought him birthday presents, Christmas presents or taken him on a holiday - that's all been left up to me. I work very hard to give my son a good life and I know for a fact that if we were forced to share time with our son equally, he would have 2 completely different lives and that's not fair to him nor is it very equal for him. My ex has never sought additional time with his son beyond his few hours a few days a week and 6 hours on Sundays.

      For those who are fighting to get your equal time with your kids, good for you, keep up the good fight. You probably deserve it. But try and keep it in the spirit of doing what's best for your kids. If you're just doing it to avoid child support payments or to "stick it" to your ex, don't. Your kids will be the ones who suffer and the emotional damage that fighting or poor parenting results in will be on you as parents.

      I think every situation is different and parents need to put aside their hard feelings towards each other, face reality and get on with it. Having children 50/50 out of the gates of a highly emotional situation is probably not the best thing. Children need stability and need to be in the surroundings they are most familiar with until they can handle more time away. They know their parents love them but we have to do what is best for our children. They will eventually understand that mommy and daddy can't be together anymore and they will adjust, but it's up to the adults to make sure they are protected, well cared for and have as little disruption to their lives as possible. It's the least we can do for them.

      I am very proud of you as a dad, I wish more parents would make the changes necessary to see their kids grow and prosper. But the fact of the matter is, not everyone has the same attitude and therefore, I think it's unwise to force children into a situation that they (and their parents) are not ready for.

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  8. Kerry, shared custody will equal more money being paid out from the non-resident parent. The myth of men fighting for shared to avoid payments is just that, a myth. I am going to assume your ex never went to court to argue for shared custody, and this bill wouldn't have changed your situation 1 iota. This bill doesn't imply "shared from day 1", "force shared custody" or "1 sized fits all".

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    1. Actually, from my experience in practice, there are in fact parents who fight for shared custody to avoid paying the full ticket on spousal support. Thankfully, it is also true that these parents are a small minority of the parents who seek shared custody.

      And Mr. Vellacott's bill does in fact propose that shared custody would be presumptive arrangement following separation.

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    2. Also, how do you draw a relationship between the terms, "forced shared from day 1", "1 size fits all rack" and the term *rebuttable* presumption? Could you elaborate on this thought? Could you provide a more detailed theoretical that would show the "1 sized fits all" consequence of such a presumption?

      Simply parroting the obtuse terms "forced" "1 size fits all" is not a very good arguing tactic.

      Re: Support Payments

      I assume you are talking about clients you have represented and uttered the sentiment that they would like to reduce their support commitments. Or, are you making a personal assumption beyond that? Anyway, if it is the former, I assume you told them this:

      "Shared Parenting involves a duplication of investments, including new bedroom/s, new wardrobe of clothing, computers, furniture, toys and many other expenses, involving substantial capital costs.
      Shared Parenting also shifts a greater proportion of the day to day costs to the non-primary parents."
      Many non-primary in Shared Parenting arrangements have also reported a reduction in their overall working hours to accommodate their Shared Parenting arrangement, thus reducing their income."

      Furthermore, in practical theoretical, one might assume such a case would be a "high conflict" case, which would further the investment by the non-primary parent in court costs. Something which they would be fully aware of.

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    3. 3rd thought (sorry for split up posts)

      Perhaps I could defer to your expertise in explaining the difference in child support payments between shared arrangements and non-shared. Just so our audience knows what we are talking about. Would it offset the extra costs associated with shared parenting (groceries, clothing, etc), and court costs?

      While we are on that topic. The determination of what is a shared arrangement has a particular threshold (around 40%). On the flip side, have you represented primary parents who "game" that threshold?

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    4. Sure. In Canada, the payment of child support is presumed to be exhaustive of all of the payor's obligations toward the children's basic living expenses, like clothing, food, hot lunch day at school, school supplies and so on. Some more costly expenses may qualify as "special expenses." These are usually things like summer camp, sports activities, daycare, tutoring and uncovered medical costs. Where a child has qualifying special expenses, the parents pay toward those in proportion to their incomes.

      The amount of child support is determined by the federal Child Support Guidelines. The Guidelines have a series of tables that dictate the amount payable based on the number of children and the payor's income. The Guidelines also have a number of exceptions to the tables which give the court and parents the opportunity to set an amount of support that is higher or lower than what the Guidelines would require. These include "split custody" (where one or more siblings live with each parent) and "shared custody" (where the payor sees the children for 40% or more of their time). Parents have "joint custody" all the time. Shared custody refers only to the amount of time the children are with each of their parents.

      The Guidelines do not have a formula to calculate child support in situations of shared custody, so we often use the formula for split custody: the amount of child support that gets paid is the difference between Parent A's obligation to Parent B for the children in B's care, and Parent B's obligation to A for the children in A's care. In shared custody, you would look at the amount owed by A for all of the children at his or her income, the amount owed by B for all of the children, and subtract one from the other. There are lots of other ways the amount can be calculated, but this method is pretty common.

      The intention of this approach is to reflect the increased cost to the payor of having the children so much of the time. Whether or not the approach actually offsets the extra costs is another question. For some it does, for other it doesn't. This approach also has nothing to do with court costs. That's a separate issue.

      Yes, I have represented parents who take creative approaches to calculating the 40%. However, my job is to explain to my client how the court calculates time, and to not advance positions that are unreasonable or doomed to fail. I don't want my client to have to pay the court costs of a failed application, and I don't want to needlessly provoke the conflict between the parents by advancing an unreasonable position.

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    5. Thank you. However, maybe you could help me out with my math. It appears to me that the difference of shared vs. non shared calculations are negligible. Say for a $40G (visitor parent), 20G (primary parent), how would shared vs non-shared play out?

      "This approach also has nothing to do with court costs. That's a separate issue."

      I was just saying it could be an issue, if we were attempting to evaluate a parent's financial motives.

      "Yes, I have represented parents who take creative approaches to calculating the 40%."

      Thanks, but...
      I was wondering if you had encountered a *primary parent* who inappropriately argues/takes the position for less access (below the threshold) for financial gain. Can primary parents "act badly" too? How would you address that from a legislative stand point? (Putting aside your own professional morality for the moment)

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    6. It's true that the difference is sometimes negligible. For some people it's significant. Say you have two kids and the payor makes $40,000 and the recipient makes $20,000. If the payor has the children for less than 40% of their time, the child support payable would be $610 per month. If the parents have a shared custody situation, the set-off approach that I described would see the payor paying $610 minus $315 the recipient would pay if the payor had the children for most of the time, for a net payment of $295. That's 48% of the table amount and a sizeable reduction.

      Court costs are a tricky issue. They are most awarded to the person who fought an application that lost or to the person who made an application that succeeded. The only way court costs would factor into this is if you were sure you were going to win and the other person stubbornly refused to agree to your position, forcing you to bring an application. Then you might get your costs of the application. In any event, I would never bank on a costs award.

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  9. Spousal support? Do you mean child support?

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    1. Yes, I meant child support. Thanks for catching that.

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  10. In a perfect world shared parenting is the ideal. The operative word here is "shared" and unfortunately I have seen too many cases where one parent wants and gets equal time for the sole reason of saving on child support payments. Too often this opportunistic parent was never the primary caregiver in the first place and is more than willing to have the children with them in an effort to save a lot of money. In my case, I worked full time (made almost as much as ex), but still did all the parenting. Imagine my surprise when ex said after fourteen years that now he wanted to step up to the plate. Seeing it as fair I obliged, but in reality it was a façade. Sure ex has the kids 50% of the time, but he does nothing to actually parent, so in reality its a win for him. I am still responsible for most of the parenting which ex either can't or refuses to do. I deal with all school matters, medical appointments, sick days, braces, purchases, homework, activities, clothes and even discipline. Just last night ex refused to help son with homework assignment and dropped him off here. It is really sad and really opened my eyes to the fact shared parenting is not always what it should be. Judges need to recognize who is sincere and who is just asking for this arrangement for their own self serving interests.

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    1. That's a point that a lot of academics have made: often shared custody means having the child for half the time while the other parent remains saddles with all of the tasks involved in parenting.

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  11. I disagree with you Mr. Boyd. I have a situation where the female partner makes 2 to 3 more income than I do and she even works less hours. I was the stay at home dad for most of my child's life. I took the child to doctor, dentist, family vacations, PT conferences and the teachers called me as my ex refused to talk to them. She saddled all the responsibility on the oldest child to take care of her younger sibling, while my ex went clubbing it. How do I know she pocket dialed by mistake several times. I have gotten numerous calls asking me to come and get the younger one to look after. I had to take time off for Spring Break because she couldnt look after them or afford to put them in extra curricular activities. Right after Spring Break, she took time off to buy expensive equipment for herself and the new person of interest, trips or whatever she wanted for herself and the the children were not allowed to use it or go with her. In fact she informed our youngest I wont ever take you on a trip with me. How is that in the child's beat interest? Wake up female parents can be just as irressponsible as male ones. Thankfully the judge saw it that way too and i have my children more. But guess what on paper and what you have spoken so blatantly on your blog, you would think my ex should have primary custoday.

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    1. You're entitled to disagree with me, but it would be nice if you actually read the post you are commenting on. If you had read the post, you would have noticed that my views about presumptions of shared parenting aren't pro-mother or pro-father, but concern the need for children's parenting arrangements to be determined on an individual basis. In the circumstances you describe, where you were the primary caregiver during your relationship with your partner, I would expect that the children would have remained mostly with you after separation.

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  12. Just because someone wants equal parenting time and finds it difficult to obtain due to a 60-40 rule hat creates incentives to resist, does not mean they are a men's rights nut.

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  13. Mr. Boyd made many good points, but one point struck me very much:

    it may be contrary to the children's best interests, and potentially even harmful, to impose shared parenting arrangements on interim applications when so little evidence is available to the court; and,

    Alas how true it is. I live in one city in East Asia, where the legal system is usually seen to be modern and fair. Unfortunately. the custody case I am currently embroiled in proved otherwise. My underemployed, abusive husband brought me to court because my child and I wanted to move home, leaving the isolated place we lived to another part of the city with better education, transport and medical facilities.

    Despite the lack of time devoted to the hearing, his history of domestic abuse, his inability to support himself financially and the far distance between the parents' homes (at least 90 minutes door to door), the judge ordered shared care arrangement for the child: the 5-year-old has to split her week between her parents' houses. She also ordered the child to go to a school in the city (because it's deemed to be half point between the two homes).

    The child's behaviour has changed to the worse -- she is less independent, has become more easily emotional and is prone to throwing tantrums, her sleeping habit has been disrupted. Because of the daily long commute to school, around 3 hours door to door, her stamina has suffered as well.

    I am fighting to change the interim order, but it is an uphill battle. It has made me so angry that the judge decided to give such a drastic order without taking a look at evidence carefully.

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  14. Mr. Boyd,
    I have read a lot on the narcissistic parent and how this behaviour results in the small percentage of family law disputes that end up in trial. I agree with you and the consistency in which you convey "the best interest of the children". There is another monster here that blows away some of the theories on this thread. I would love to know if you have a position or opinion on this type of behaviour amongst family law litigation, and perhaps how the court system interprets it case by case. I hope this makes sense. Its really late.


    10/3/15 1:15 AM

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    1. I sort of understand what you're saying. Moderate to extreme narcissism may qualify as narcissistic personality disorder under the Diagnostic and Statistical Manual of Mental Disorders. It's part of what are called the Cluster B personality disorders, along with things like border line personality disorder, histrionic personality disorder and antisocial personality disorder.

      In my view, these personality disorders are significantly overrepresented among the 10 to 20% of the separating population that are classified as high conflict; in other words there's a lot more people who have a personality disorder in the people that are high conflict than there is in the general population. All of these disorders, including narcissistic personal disorder, can be very challenging to deal with as a lawyer... whether the disordered person is your client (a recipe for disaster!) or the other party.

      If you're dealing with a situation like this and can afford to hire a lawyer, you need to pick one who understands a lot about high-conflict families and Cluster B personality disorders. She will know how best to approach your ex.

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  15. Hi,

    I am looking for some advice, and my situation is quite messy. I have had custody of my daughter for the past year. He was arrested for domestic assault on me last year, and just recently accepted a peace bond regarding the charge. He is in anger managment and other therapy programs now. The father of my daughter showed no interest in her until very recently, He has seen her for 3 supervised visits on saturdays for about 2-3 hours. He has now contacted me stating that he will be sending a custody order and he wants shared custody. He also hasn't paid child support until last week. One payment of $150.00. Now I am having to look into getting a lawyer to defend my case, because obviously him being with her for a week on/week off (which is what he wants) is not in my daughters best interests. I am not looking forward to spending thousands of dollars to get a lawyer and defend my daughter. But I will do what I have to, to keep her safe. Is there anything you could recommend. I have read your book backwards and forwards, and I am honestly at a loss for what will happen in court.

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    1. I can't give you advice, I'm sorry. For that you must speak to a family law lawyer in your neighbourhood. If you don't have someone to go to, call the Lawyer Referral Service and they'll set you up with a lawyer who will charge you only $25 for the first half hour.

      As a general comment, though, the courts are creatures of reason and common-sense. A parent is unlikely to go from 2-3 hour visits once per week to week-on/week-off; the court will think about the person's parenting skills, his relationship with the child and the child's experience of her relationship with him before making any dramatic changes to a parenting schedule.

      This is an important issue for you and for your daughter. Please speak to a lawyer in your area as soon as you can.

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  16. I just want to share our situation. My daughter gave birth to a beautiful boy two years ago. She was not married to the father. As a matter of fact the father was in a common-law relationship and my daughter was married to someone else. My daughter left her husband and decided to keep the baby. When my grandson my 9 months old his dad took my daughter to court and he was awarded alternate weekends. Back in September he took her to court again and got an additional overnight during the week. He is taking her to court for 50/50. We believe that it would be too disruptive to have such an arrangement. In our case this is the father who just wants more and more and is convinced that shuffling a two year old is what is best for him.

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  17. HI John,

    How do you rationalize the current split of income when there is a 50/50 shared parenting regime. This provides the recipient with little reason to seek employment and essentially a bunch of free time as well. I was shocked to learn that I would actually pay a few hundred more under a 50/50 regime as vs. if I'd let my ex-spouse have primary parenting (because of tax benefits I think is why). This in turn creates a loophole for the recipient whereby they can insist on looking after the children (right of first refusal) whenever something comes up in the payors life which justifies to some degree, not seeking meaningful employment.

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    1. That's an oddity of the Spousal Support Advisory Guidelines. The Advisory Guidelines are available from the Department of Justice website, and there will be an explanation of the formula for spousal support when the parents have shared custody as well as an explanation of the authors' reasoning.

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