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

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