02 June 2014

Shared Custody Bill Defeated on Second Reading

Bill C-560, a bill to amend the Divorce Act tabled by Conservative MP Maurice Vellacott, was defeated by a whopping 80 to 174 at second reading on 28 May 2014.

If successful, the courts would have been required to impose a regime of shared custody — an equal distribution of children's time between their divorcing parents — except "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." This presumption would have applied to all new parenting orders made under the Divorce Act, as well as to all orders previously made under the unamended act.

Regular readers will be aware of my view that defeat was the most appropriate result for Mr. Vellacott's bill, his third or fourth at-bat on this issue since 2009. My reasoning for this position, which you'll find in my 20 December 2014 post "Why There is No Place for Presumptions of Shared Parenting in Family Law: A Polemic for the Holiday Season,"is fairly straightforward and boils down to this:
"... 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 vote and its results can be found in the record of the House of Commons debates for the day; do a search on the page for "560." I am very pleased with this result.


  1. So if not this bill then what? What improvements would you like to see the federal/provincial government make?

  2. Good questions.

    If I had my way, the federal government would get out of the business of corollary relief altogether; the Divorce Act would cover only divorce and the recognition of foreign divorces. Having two levels of legislative jurisdiction in family law matters is bad enough, never mind the confusion cause by the overlap on some issues and not on others, the inability of the federal legislation to accommodate provincial changes, and the two-tiered approach the act creates by being applicable only to married couples. It would be far simpler if the Divorce Act just dealt with divorce.

    If the Divorce Act could not be trimmed down, then I would prefer it to talk about custody and access in terms of parental responsibilities, parenting time and parenting time, pretty much along the lines of the language proposed in Bill C-560. Custody and access are needlessly adversarial and distract from the real goal of orders about children, their best interests. I would also add language to reflect Canada's commitment to the UN Convention on the Rights of the Child by creating a rebuttable presumption that children's views will be heard when decisions are being made that affect them.

    I am generally happy, so far, with the structure of the provincial Family Law Act and how it seems to be playing out in court.

    If I could tweak the Family Law Act, it would be to clarify the terms on which someone is presumed to be a guardian, as well as the section about when someone is appointed and removed as a guardian. Right now, these sections do not provide a great deal of direction, and there is some confusion about whether someone who never lived with the other parent but always lived with and raised the child is the child's guardian.

    It would also be nice if the government(s) would do something about the Spousal Support Advisory Guidelines. It is bizarre that an academic paper could have such influence, while being intentionally vague and lacking regulatory status. Surely the Advisory Guidelines could be simplified, codified, given a full airing in the legislature, and be implemented as a proper regulation.