Life as a Family Law Lawyer: Malevolent instigator of conflict or thoughtful advocate of settlement?

Over the winter holidays last year, I happened to comment on a private member's bill, Bill C-560 tabled by Conservative MP Maurice Vellacott, that would have amended the Divorce Act to establish a rebuttable presumption of shared custody (the equal division of children's time between their separated parents). I said some nice things about the bill — it would replace "custody" and "access" with less adversarial, more child-centred language; it would require lawyers to discuss counselling, parenting coordination and arbitration with clients involved in parenting disputes; and, a parent would be required to give 30 days' notice before moving — but I also said that a one-size-fits-all presumption about custody is not in the best interests of every child and that, in my view, the presumption the bill called for was wrong-headed.

Over the next few weeks, after a reader posted a call to arms on a men's rights website, I received a surprisingly high volume of comments. Comments are great, don't get me wrong; I welcome debate, disagreement and discussion, and the more the merrier. However, a lot of these comments ducked the issues I'd raised about Bill C-560 and attacked me personally, and family lawyers in general, for opposing the bill. Here's a sampling:

· 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. 

· I read this in its entirety and its a blatent attack piece. Misrepresentation at its worst. By who else but a Family Law Lawyer. By the way this is the group who stand to lost the most if such an ammendment were to be made into law. Compensation cowboys, the scum of the earth. These liars makes the world a worse off place. 

· "However, from my perspective as a family law lawyer" In other words, from the perspective of an interested party, ie someone who has a keen interest in protecting your source of income.  

· "I act for men and for women and have no particular bias one way or the other" Meaning what, exactly? Does this mean that when you have a woman for a client you'll do everything to screw over her husband, and vice versa?  

· Looks like ol' JP and his cohorts here stand to lose a significant amount of income if equal parenting amendments pass. 

In other words, family law lawyers oppose sensible presumptions like the one proposed by Bill C-560 because we make our living provoking conflict between parents.

From my experience as a family law lawyer, this sort of argument is absolute rubbish, and I said as much in my replies to these comments. Here's what I said to the "interested party" fellow:

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

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

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

This past July, I had the unique opportunity of sampling of the views of 167 judges and lawyers attending a national family law conference through a survey designed and organized with two prominent academics and the Canadian Research Institute for Law and the Family. Among other things, we asked a handful of questions about respondents' experiences with and opinions on shared parenting and shared custody, including this question:

Do you support enactment of legislation to amend the Divorce Act to create a presumption of equal care or residential time? Please explain.

To all those who believe that family law lawyers are unprincipled, unscrupulous, money-grubbing, conflict-fomenting vultures who provoke parenting disputes to line their own wallets regardless of the emotional, financial and social consequences to their clients, I present our respondents' replies to this question, edited to remove substantially similar comments in the vain hope of keeping this post to a reasonable length; my remarks continue afterward:

While the goal is laudable, I am concerned that many parents will get shared parenting on paper which will reduce their child support, and then not step up to the plate, leaving one of the parents with most if not all of the responsibility with much less income. 

There is a huge difference between saying that each parent will have parenting time, and then determining how much is appropriate, and saying that there should be a presumption of equal amount of time. ... The parenting time concept provides flexibility for the Court to determine what is in the child's best interest rather than taking away flexibility which a presumption would do.  

The current legislation is situation specific. Looking at each family situation specifically and tailoring the result to what works best for that family and situation is preferable to making one result for all situations. Parents can have a shared parenting arrangement if they so choose, it does not need to be legislated.  

Best interests test should always be the determinant of the issue, without a presumption.  

While not codified, there seems to be a presumption in law that mom will have the majority of care/residential time. There should be no presumption or at least an equal presumption.  Fathers are more involved this generation.  

Already many people presume that there should be equal parenting time and this would create a stronger platform for them, even when shared parenting may not be appropriate.  I believe that the court should still look at what is in the child's best interests.  A legislative presumption may make it too easy on judges to make a less detailed examination of the circumstances.  

It's not always in the children's best interests to have equal care.   

Yes, maybe. It might help reduce those files ... where parties are very entrenched about parenting time right out of the gate.  Stereotypically, moms think "I've been the one at home, so dad can't do it by himself" rather than think "yeah, dad can step up to the plate and take a more active role and wouldn't that be beneficial for the children going through this difficult transition". Both parties need to change their roles, moms need to reduce parenting time and increase employment efforts and dads may need to reduce employment efforts so that they can increase parenting time.  If it's the presumption of shared time then perhaps the parties will start there and then figure out logistically how close to shared can they can actually achieve month to month.  

It is preferable to avoid any presumption around parenting, families are unique and should be treated that way.  

We aren't there yet as a society. In my experience, the majority of custody cases are not "shared custody" cases  

I think it would take a lot of the heat out of family law disputes if there was a presumption of equal parenting. it may also smooth out the often unequal balance between parents created by different personalities or parenting styles which disadvantage, for example, a parent that disciplines. I think it would counter the move to involve children more in parenting disputes with the increasing use of lawyers to represent them.  

The test is and should be best interest of the children, considering what their experience with each parent has been prior to separation, how available and capable each parent is to provide full care after separation, and the needs of the children.  There should be no presumption of equal care or residential time but a careful analysis of the family system and dynamics focusing on what is best for the children. I think litigating for shared parenting is an oxymoron!  

the best interests of the children is still a good test and provides the flexibility that the court needs in individual cases  

I believe this could cause problems.  However, I would not be opposed to a presumption of "Joint Custody" understood as joint Guardianship and entitlement to decision-making and whatever degree of assuming rights and responsibilities of parenting.    Shared Parenting in the sense of some form of 50/50 residential care and control can not really be assumed since it is not always reasonable, viable, etc.  

Some child care experts argue that shared parenting isn't always in child's best interest. Sometimes better to have one place they call home with consistency  

it is appropriate to make parenting arrangements based on what is best for each particular family.  Beginning with a presumption of equal residential care means moving away from that standard  

Both parents should be responsible for the care of the children and have the opportunity for the children to reside with them  

This presumption is not in line with the best interests of the children in all cases.  A detailed examination of the parenting situation is the best method of determining the best parenting arrangement.  No presumptions ought to be in place, either in favour of shared parenting or otherwise.  If there is a genuine concern that not enough cases are resolved by way of shared parenting, this ought to be addressed through education of the bench and bar regarding the situations in which shared parenting is appropriate.  

Presumptions are not particularly useful. They promote positional stances that do not assist parents to craft a post separation parenting regime will be best for their child or children. Unless there is a good reason for it, and it is handled such that transitions are seamless and conflict free, shared parenting places too much unnecessary stress on children. I am not sure I as an adult could stand or thrive living in two different households for whatever period of time, be it week to week or two weeks and two weeks or the absolute worst; let's move every 3 and 4 days to satisfy the adults. This brings living out of a suitcase to a whole new level.  

I do, however, the simple notion of such a presumption may not work well in practice.  While it may be "presumed" I have seen numerous situations where same is nothing but a sham designed to affect support.  The interests of the children in NUMEROUS cases are secondary at best.  

In many situations equal care or residential time is not in the best interest of the child. Further, what age does this start at? There are studies that show equal care or residential time negatively affects a child's development.  

I believe that the parenting arrangements should simply be looking at the children's situation, and the parents' situation, and determining from there the best schedule.  Many intact families don't work based on each parent spending 50% of their time with the children, so why would it be appropriate to have parents after separation be presumed to share parenting when they likely haven't done so while intact?  

It would be a terrible mistake as the experience in California has shown. Each case is different and must be evaluated  

Presumptions have no place in the formulation of the best interests of the child.  This is fact dependent and should be based on a holistic view and the unique factual circumstances implicit within the determination.  

The focus needs to remain on the children in each particular case, and what is in their best interest.  It should not be presumed that it is in a child's best interest to transition to a new residence every few days.  If the goal is co-parenting (which does not require shared parenting or joint custody or equal time), there needs to be educational programs provided to give parents the tools they need to cooperatively parent post-separation, alternative dispute resolution services available, readily available and affordable parenting coordination, and mental health support/counseling services available.  

This is a step backwards from a child centred test to a focus on parental rights. Children are not property. Parents need to focus on their "responsibility" to meet children's needs, not their "right" to parent.   

I’m  not certain about this; a STARTING POINT, maybe, but it can create problems for  people in abusive relationships to have the burden of rebutting a presumption  

simply does not reflect reality, and would lead to endless litigation  

This will simply cause more litigation - if the parties can agree or there is a past practice of a shared physical parenting regime the court will order this or the parties will agree  

Not all cases deserve that presumption, where there has been abuse or an incapable parent or not in child's best interests   

An equal care presumption could be dangerous in certain circumstances. I believe it is more prudent to protect children who may be in a dangerous situation from the outset.  

qualified yes - as long as the best interests of the child prevail  

The focus must remain on what is in the best interests of the individual children. It is also my understanding from recent social science literature that children are not doing as well in so-called '50/50' arrangements as was hoped.  

The premise is admirable but not necessarily in the best interests of the children.  

in situations where parties were in the same home sharing the responsibilities I think there ought to be an examination of whether the parties were active parents before an assumption is made that just because they lived in the same home they should share equally in parenting time and responsibilities   

I think every child is different.  Some children do not function well in this type of schedule, and it would lead to substantially more litigation, in my opinion, if we had to start with that presumption.  As well, there continue to be a number of parents who cannot or should not have that type of parenting responsibility.  While there would certainly be situations in which it would be helpful, I think that more often than not, it would make things harder.  I also think that for those parents who truly are not able to be an equal parent, either due to their scheduling, or their abilities, it would create a negative stigma on those parents to give "primary care" to the other parent.  

There should be a rebuttable presumption. It would lead to more settlements  

This will help to eliminate the preliminary skirmishing upon breakdown of the relationship, which often involves causing false criminal allegations to be made.   

This is unrealistic for many people; it's an ideal, but not realistic for working class families tied to specific work schedules. There ought to be no presumption in any particular direction, in my opinion.  

Based on the social science literature I have read and my own anecdotal experience, I think that most children need a primary care giver and a "home base" when children are of a young age.  Too often my clients tell me that their children tell them they need to spend equal time with both parents because it is "fair".  I think that is putting the priorities of the parents ahead of the needs of the children.  

I am not a fan of presumptions.  Each case is unique and should be determined that way.  I see many parents, usually fathers, seeking shared parenting to reduce support obligations and this type of presumption could make that easier without properly considering the best interests of the children.  

Children should benefit from an equal relationship from both parents unless circumstances require otherwise  

Maximum time as is in the interests of child is preferable, because it recognizes that not all children do well going back and forth between two homes.  The week on/week off works for some, but for other children it causes a great deal of stress to not have a home base, to only be able to see friends in alternate weeks. It only works where the parents are able to look at the child's schedule, interests, etc., and allow her/him to have the same life in both homes.  

I don't think legislated presumptions are helpful, particularly if the focus of the enquiry is the best interests of the children.  

Given the unique circumstances of families and children, a presumption where children are involved is in my opinion not appropriate.  

the presumption the mother is the more suitable parent no longer applies  

the concept or philosophy of "equal" time can be achieved in many ways, some of which do not mean equal physical shared time.  It sometimes does not make sense to be trying to "equally" share 24 hours.  However, with such a presumption, conflict between the parties is immediately ignited as most lay persons see equal as being "alternating" weeks or "alternating" days.  Lawyers and professionals and judges should be creative enough to look at different ways of achieving "equal" or other residential arrangements that maximize contact and, frankly, are more in keeping with what the parents actually want or can manage.  

It removes an element of fighting.  

It is often not in the best interest of the child especially when the children are very young. ... This equal care is more about the parental rights and less about what is in the best interest of the child. Let’s use the premise of best interest of the child to determine parental time and not start with the premise that both parents should have equal time.  

I strongly oppose any departure from the best interests test.  Without this there would be an even stronger wholesale drive to parallel parenting which is not generally a particularly desirable structure for raising a child.  

There should be no consideration of anything but the individual child's best interests. Shifting to a presumption changes the focus from the rights of the children to the rights of the parent. 

The majority of families before divorce continue to be "traditional" with one parent doing most of the child care. I think it is bad for kids to be forced to spend even close to equal time with a parent who is ill-equipped to look after them properly.   

A presumption of equal care would not be a child centred approach and such a presumption would mean upheaval for children in circumstances in which children are already experiencing increased stress and anxiety.   

I don't think we can improve on the "best interest" test. Many families, when left to order their own affairs, do so in a way that has the children spend more time with one parent than another pre-separation. Why force the children into an artificial arrangement just because one parent wants to divide children the same way as we divide property?  

I act for many women who have been in relationships in which there has been domestic violence. For many of them an incident or incidents of domestic violence have been the reason for the breakdown of the marriage ... They are often disadvantaged at the time of attempting to negotiate the terms of care and residential time regarding their children both emotionally, financially and terms of power dynamics. Many are not in an emotional or economic situation to rebut a presumption of equal care or residential time even if it would be against the best interests of their children.  They neither have the means nor emotional energy to pursue litigation to rebut such a presumption. In these cases it would be detrimental to both mothers and their children for such a presumption to exist.  I have seen situations in my practise where an agreement to joint custody and guardianship has been used as a vehicle for harassment and control.  

It may reduce the importance of "status quo" immediately after separation which can cause fights  

It would create more litigation to overturn the presumption.  the Child Support guidelines have already created more litigious attitudes because of the effect of shared parenting on support.  

It is inaccurate in most circumstances.  One parent, still primarily the woman (but that is changing somewhat) assumes the bulk of the parenting responsibilities.  It will place women who are trying to leave situations of domestic violence in an even more vulnerable position than that which they already face when trying to end such relationships.  I also have concerns that we are confusing time with children as the basis of parenting.  While this is a core concept time share is not shared parenting.   Again I see women entering shared parenting regimes in which they take less child support (that they need), no spousal support because they won't litigate for themselves, and then continue to bear all the parenting responsibilities while the children are living an unstructured life that is prone to manipulation and increased conflict.  

this is what people want as many dads especially miss out on an opportunity for shared custody simply because they moved out of the family home and created a status quo of primary care to mom.  

Best interests of the children should always be the sole consideration.  It should not be an uphill battle for a parent to seek to have primary care when his or her ex is not a suitable parent.  

There should be no presumption it needs to be reviewed on a case by case basis. Leaves too much room for the bullies in the relationship to dominate (i.e. using the presumption because they know the weaker person will not fight)  

That has little to do with the best interest of the child which I believe is still the proper focus for the court. It also raises a support issue of significant concern in many cases.  

All families are different.  The presumption should be to the status quo of how children were parented during the marriage.  The goal is to focus on the children and their needs not to create a presumption of "equal division".  

I am wary of presumptions, and the prospect that that will reduce the scrutiny  and attention paid to this important issue.  

children have a right to equal access to each parent  

There should be no presumptive distribution of parenting time, whether shared or anything else. A one-size-fits-all approach will work well for some children but be disastrous for others; plus the potential for extremely adverse outcomes on initial chambers applications is extraordinary.   

Equal time with both parents is disruptive to the routine of young children and I find most parents who are wanting equal time are doing it to get out of paying the full amount of child support and to control the other ex-spouse.  Older children (13 and older) have a better ability to decide if they want to spend equal time with both parents.  Young children need the stability of having one home, with one set of rules.  

While I realize that hashing it out in court is not good for children, that presumption could have a chilling effect on claims for primary residence or unequal care regimes even where that is in the best interests of the child, particularly where the opposing parent is more domineering or litigious.   

I think that each case needs to be addressed on its own merits with the assistance of third parties where necessary.  I worked as a representative for children for 18 years.  The issue that came up time and time again was that while the children often wanted to be with both parents, the children wanted to have a "home base".  This is a very difficult issue which needs addressing.  The sharing of the children has to be as much about what is best for them and not so much what the parents think is best for the parents.  If the relationship between the parents will foster and improve the children's development and lives then that is an ideal case for shared parenting.  But more often than not, the issue is more about power and control than it is the child's best interests.  

It does not take into consideration the development of the various age groups. It seems that the legislator is more worried about the parent`s rights than what is in the best interest of the children. We are now having discussions as to what is appropriate for an infant and a toddler and it seems that it is imperative to their development that they be mainly with one parent as to form an attachment. Shuttling back and forth is not the answer.  

This will inevitably have the result that some women will bargain away their financial rights in order to maintain a pre-existing primary care 

Absurd idea...one "size" does not fit "all"...in addition that approach does not take into account the unique circumstances of each family and that family's children.  

our Judges already take the maximum contact factor very seriously and I believe if a presumption is created we will have impractical results and the power struggles will just find another forum 

pre-separation, mothers are still the main care giver.  Why change the dynamic for the child?   In my experience many fathers want 50% of the time and no responsibility. E.g.  Who books medical and dental appts.  Who does the leg work of finding the child care.   Equal residential time does not reflect reality for the child.  

Subject always to the best interests of the children, this should be the presumption     

In many families one parent is the principal parent and this often does not change in a divorce; child should have a right to the parenting he is used to.  

this presumes that both parents are capable and interested in parenting on an equal basis. We know from many significant reports and studies that even in shared parenting arrangements the mother continues to take on all of the primary parenting tasks - doing so most often with a reduction in child support.  

This is not always in the best interest of young children; difficult in high conflict cases and in cases where there is domestic violence.

This struck me as an interesting, and telling, range of comments. What I took away from reading these remarks is that, regardless of respondents' position on the shared custody proposal, the lawyers and judges we surveyed generally:

• put the interests and needs of children before the interests of their parents;
• placed a high value on the settlement of parenting disputes;
• sought to defuse conflict and viewed litigation as a last resort;
• demonstrated an awareness of the traditional and changing roles of mothers and fathers, and of the impact of family violence on parenting; 
• supported shared custody when best for the children; and,
• had given serious and considered thought to the merit of a presumption of shared custody and its implications for their clients.

I have always been tremendously proud to practice as a family law lawyer, and always felt terribly privileged to work with colleagues who were so highly ethical, principled and skilled in an area of practice that is demanding at its easiest and horribly fraught at its worst. The claim that family law lawyers are liars who exploit conflict for profit is insulting, juvenile and, as the answers to our survey suggest, baseless.

(I reiterate that the above is not a complete statement of the responses received to this open-ended, qualitative question, and should not be relied upon for analytical purposes. Not all respondents provided comments, and not all of the comments received have been reproduced. However, for those interested in the results of our survey, 77.4% supported changing the language used by the Divorce Act to address post-separation parenting to something along the lines of "parenting time," "parenting arrangements" or "parental responsibilities," and 23.2% opposed amending the Divorce Act to impose a rebuttable presumption of shared custody. Respondents also said that about 40 to 45% of their cases are resolved with an agreement or order for shared custody, and that about 75 to 90% of their cases resolve with both parents being responsible for making parenting decisions. A more complete report on the results of the survey will be published by the Canadian Research Institute for Law and the Family by the end of October 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.

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. 

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.