27 December 2013

A Brief Guide to Making a Better Argument

The ability to muster up a decent argument is an important life skill; it's why we live in a democratic civil society governed by the rule of law rather than an anarchic Thunderdome where might makes right. It's not just first-year university students who benefit from the ability to make a good argument. It's what you need when you want to pitch an idea to your boss, ask for a raise, write an editorial, sell a product, argue an application in court, or comment on a blog post.

The fundamental purpose of an argument is to persuade the listener to reach a particular conclusion by giving reasons why the conclusion is correct. The giving reasons part of this is really important; saying "just 'cause" won't cut it. Giving reasons is the hard part of making an argument because you really need to think about exactly why your conclusion is correct.

Here, for example, is a simple but valid argument:
All cats are mammals. All mammals die. Therefore all cats die.
If the reasons for the argument are true (that cats are mammals and that mammals die), then the conclusion must be true. This is very basic example of a valid argument; you might make other, more complicated valid arguments about:
  • why you should buy this car as opposed to that car,
  • why you cast your vote a particular way during an election, or why you might decide not to vote at all,
  • why you and your spouse should separate,
  • why a certain parenting schedule should prevail after separation, or
  • why someone's argument in a blog post is incorrect.
However, not all arguments are good arguments. Some are contradictory or nonsensical, and others contain errors of reasoning. For example, here's an argument that sounds like a good argument:
Some people are mechanics. Some mechanics fix cars. Therefore some people fix cars.
But it's not a good argument. Here's a counter-example that shows the error in reasoning:
Some machines are capable of flight. Some things capable of flight are birds. Therefore some machines are birds.
Formal logic errors can be difficult to detect, but they're fun to find when you do. Of course, in legal matters, finding a logic error can depend on not just the structure of an argument, but on having a deeper understanding of the legal principles that apply, and equally deep understanding of the facts. For example, an argument like
I am entitled to see the children and I am required to pay child support. She doesn't let me see the children. Therefore I don't have to pay child support.
won't fly, even though it may sound reasonable at first glance. The reason why it won't fly is that there is no legal connection between a parent's obligation to pay child support and a parent's entitlement to spend time with the children support is being paid for. They are entirely separate issues.

As well as formal logic errors and errors of law, there are the informal logic errors called fallacies. These are errors in how we think about things and analyze a problem, and frequently appear in letters to the editor, arguments in court and comments to blog posts. The following are a few of my favourite fallacies.

The circular argument

In this sort of argument, also called the circulus in demonstrando, the correctness of the conclusion is assumed and becomes the reason why the conclusion is correct. For example:
A equal parenting schedule is fair because it is an equal parenting schedule.
Arguments like this aren't very helpful because the reason for the conclusion is the conclusion itself.

Argument from ignorance

This argument, the argumentum ad ignorantiam, says that something is true because it hasn't been proven not to be true, or that something is false because it hasn't been proven to be true. For example:
This bill simply makes it the applicant's 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.
This argument says that because the original speaker has not explained why a proposed legal presumption is inappropriate to the satisfaction of the speaker that it must be appropriate. The argument isn't very helpful because it doesn't add any information to the discussion in support of the speaker's views apart from his disagreement with the position of the original speaker.

The argument against the person

Also known as an ad hominem argument, this argument argues for its conclusion by avoiding the actual subject at issue and attacking the other person. Here are a number of examples:
Looks like ol' JP and his cohorts here stand to lose a significant amount of income if equal parenting amendments pass.

What it this? I read this in its entirety and its a blatent
[sic] 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 [sic] were to be made into law. Compensation cowboys, the scum of the earth.

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?
Perhaps being a Family Law lawyer you are just used to presenting baseless assertions.
The problem with arguments like these is that they say nothing about the subject at issue. They merely attack the person who is disagreed with. They also come across as rather juvenile and undermine the speaker's credibility.

Argument by appeal to authority

This argument, also called the argumentum ab auctoritate, tries to support its conclusion because of the authority or standing of the person making the argument, or of another person who has made the argument. For example:
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.
This is yet another kind of argument which explains nothing about the reasons supporting the conclusion, and the context in which the argument is made, including in reply to the argument of someone else, is irrelevant. It says "this conclusion is correct because it is I who hold it." Unless you are prepared to uncritically subscribe to the speaker's authority, this argument is pointless.

Here's another example, in which the speaker merely quotes someone in a position of authority and high social regard:
"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
The fact that Ms DeCrow has said this doesn't mean that she is right, and, as a result, it doesn't mean that the speaker is right either. Here's a counter-example to prove my point.
"Mars is somewhat the same distance from the Sun, which is very important. We have seen pictures where there are canals, we believe, and water. If there is water, that means there is oxygen. If there's oxygen, that means we can breathe." 
- Dan Quayle, American business person, former Vice-President of the United States of America.
See what I mean?

However, it is not an appeal to authority to refer the listener to a source of information, such as website, book, journal or academic paper. For example:
The work of Professor John Wade is a good starting point on the subject.
The difference here is that speaker is providing a resource for further reading on the part of the listener rather than relying on the resource as authority for the speaker's proposition.

Argument by taking out of context

This sort of argument, also called the fallacy by quoting out of context, is particularly popular in American politics and attacks a position by taking the speaker's original words out of context and dumping them into a new context. for example:
And of course all the child murders in Australia is a good reason to oppose it too, right JP?
This selective reference distorts the speaker's meaning by presenting them without explaining the circumstances surrounding the original speech.

The red herring argument

This argument presents a side- or non-issue to distract from the issue being discussed. For example, a statement like
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.
which purports to reply to an argument or reason that has not been stated by the original speaker. This sort of argument says nothing about the main subject under discussion. Here's another:
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.
In the context of a discussion about the merits of a presumption in favour of shared parenting, the payment of child support and histrionic claims of "financial slavery" are irrelevant and don't add anything to the central issue of shared parenting. They merely distract from the subject of the discussion.

Argument by Shifting the Burden of Proof

In this argument, the speaker argues that it is the listener's job to disprove the speaker's conclusion rather than providing reasons to prove the speaker's conclusion. For example:
There's no justifiable reason for not giving equal access from day one of most separations.
This sort of non-argument provides no support for the speaker's conclusion.

The argument through false dichotomy

Also called the black-or-white fallacy, this argument sets up two positions as polar opposites, implying that the subject of the argument is either all one thing or all the other. For example:
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.
In the context of a discussion about shared parenting, this misleading statement suggests that either there is shared parenting or one parent has the children for two weekends a month, as if there were no other potential arrangements for the children's time. Here's another example:
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.
In fact, joint custody — where both parents have custody — is a very common post-separation arrangement in Canada and people don't go to jail about it. The point of arguments like these is that they try to strengthen the speaker's point by establishing the greatest possible contrast between the two positions and eliminating the possibility of a middle ground. And another example:
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.
The appeal to hypocrisy argument

This argument, also called the tu quoque fallacy, attempts to counter an argument by asserting that the original speaker has personally behaved in a manner inconsistent with his or her argument. It attacks the speaker rather than the argument. For example:
"A equal parenting schedule is fair because it is an equal parenting schedule." Those were YOUR words JP! No one in your comment section wrote that. Again, nice straw man you knocked down there.
This argument attacks the speaker rather than the substance of the argument, and in this example is especially egregious as the premise itself is false. Here's another example:
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.
The problem with the appeal to hypocrisy is that, like the ad hominem argument, it attacks the speaker while avoiding addressing the issue on its merits.

I will close by repeating my remarks from the beginning of this post. The fundamental purpose of an argument is to persuade the listener to reach a particular conclusion by giving reasons why the conclusion is correct. The giving reasons part of this is really important; saying "just 'cause" won't cut it. Giving reasons is the hard part of making an argument because you really need to think about exactly why your conclusion is correct. 

Properly reasoned arguments, advanced without formal logical errors or fallacies, are, in general, compelling and encourage respect for the speaker and the point he or she is making. Good arguments can also move the listener toward accepting the speaker's conclusion, and this accomplishment can be tremendously important, whether the listener is a judge, a client or a potential client, a police officer or border guard, an employer, a landlord, a politician or the author of a blog. What I have presented here is only a small fraction of the formal and informal logic errors that can sink an argument. If you are interested in working on your ability to argue, you should consider joining a debating club, such as the UBC Debate Society, picking up a book on logic, or taking a course in logic from your local university's Department of Philosophy. 

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. 

17 December 2013

CBA Releases Final Equal Justice Report

The Canadian Bar Association has today released the final report of its Access to Justice Committee, Reaching Equal Justice: An Invitation to Envision and Act (PDF). This report follows the summary report released in August 2013, discussed in my post "CBA Releases Important Report on Improving Access to Justice". The final report is the culmination of the CBA's Equal Justice Initiative, launched in 2012.

Part I of Reaching Equal Justice surveys the nature of the problem and makes the argument about why it's necessary to change the justice system at all. Parts II and III discuss the means by which the justice system might be improved, and how those strategies might be implemented. An executive summary (PDF) is published as a separate document and summaries the three strategies as:
1. Facilitating everyday justice emphasizes looking upstream from the court system for ways to prevent and alleviate problems. For example:
a. Improving legal capability by teaching law as a life skill in public education, for people in transitional phases, in workplaces and through other avenues. 
b. Using legal health checks to build resilience and pre-empt legal problems. 
c. Integrating technological solutions to increase efficiency and accessibility of current processes.
2. Transforming formal justice aims to reform and re-centre courts as the central service responsible for adjudicating people’s problems. For example:
a. Cultivating dispute resolution and effective triage and referral — making it easier for people to navigate the system and get the help they need at the earliest opportunity. 
b. Re-centring courts to be open to user feedback and dedicated to innovation, learning, and integration of evidence-based best practices.
3. Reinventing the delivery of legal services aims for the elimination of assistance gaps and to ensure seamless and meaningful access to justice in every case.
a. Increased collaboration between legal service providers and public legal education and information providers. 
b. More support for people-centred law practices. 
c. More people-centred law practices working with integrated teams of service providers (legal, paralegal and social) to facilitate affordable and holistic delivery of services. 
d. More middle-income Canadians to be covered by legal expense insurance. 
e. Federal commitment to increase funding for legal aid services. 
f. That all lawyers provide pro bono services at some point in their careers, understanding that people do not rely on volunteer services to meet their essential legal needs. 
g. Greater emphasis on access to justice in law schools, including student legal clinics offering representation to low-income persons.
The mechanisms by which these strategies might be implemented are summarized as:
1. Building public engagement and participation requires a convincing answer to the question, “why should I care about equal justice?” The issue will not become a political priority if it is not a strong priority for the Canadian public. 
2. Building collaboration and leadership means establishing effective collaborative structures across national, provincial, territorial, and local levels, including the appointment of access to justice commissioners. 
3. Building capacity for justice innovation involves four main targets:
a. Improved collection and transparency of access to justice metrics. 
b. Development of a national research strategy to advance access to justice research and scholarship. 
c. Increased federal government engagement in ensuring an equal and inclusive justice system, including increased funding for legal aid. 
d. Deeper commitments by the CBA to taking a leadership role in access to justice reform.
Reaching Equal Justice is a call to action for both the public and everyone involved in the federal, provincial and territorial justice systems, and stands beside the final report (PDF) of the national Action Committee on Access to Justice as one of the most important public interest discussions of the justice system in recent memory.

On a personal note, I was very pleased to see the wikibook JP Boyd on Family Law, published and hosted by Courthouse Libraries BC, listed as an "emerging practice" in the delivery of public legal education and information. Thanks for the shout-out.

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.