Birth Registration Form Amended: Amendments Problematic

The Vital Statistics Agency has updated its Birth Registration form to reflect the assisted reproduction provisions of Part 3 of the new Family Law Act which allow people to make agreements that say who is and is not the parent of a child, and allows a child to have more than two parents.

Under s. 2 of the Vital Statistics Act, a medical professional present at the birth of a child must notify Vital Statistics Agency of the birth within 48 hours. 

Under s. 3, the parent or parents of a newborn must register the birth with Vital Statistics within 30 days; this is the form which has been updated. The Birth Registration form tells the agency who the parents of the child are, what name has been chosen for the child and the date and place of the child's birth, and is required for the agency to issue a birth certificate.

In the new form, which incidentally can also be used to register children conceived in the traditional manner:

• the birth mother must declare that the child was born as a result of assisted reproduction
• the father must declare that he is not the biological father of the child and was married to or in a marriage-like relationship with the mother at the time the child was conceived
• up to two additional people may be registered as parents of the child, and must declare that their "reproductive material" was used in the conception of the child

So far so good, however there are two problems with the copy of the form I've been able to review.

Surrogate Mothers 

In addition to the donation of eggs or sperm, the Family Law Act allows for surrogacy and lets people to make an agreement that says that the surrogate mother, is not a parent of the child. 

However, the form requires the mother, who must be surrogate mother since she is the one who gave birth to the child, to complete the form when she may not in fact be a parent of the child as a result of an assisted reproduction agreement. And, since the child was carried to term by a surrogate mother, it is unlikely that the intended father is going to be be married to or in marriage-like relationship with her. He's likely going to be in a married or marriage-like relationship with the intended mother.

Now, neither the Vital Statistics Act nor the form say "birth mother," they just say "mother" and "parent." You might think this would allow the intended mother to fill out that part of the form, but there are a few reasons why that won't work. First, without a definition of "mother" or a clear statement of the intention of the form, "mother" must be given its ordinary meaning as a woman who has given birth to a child. Second, the spots available for two other parents, are reserved for people who are not the mother or father, and whose genetic material was used in the conception of the child. That would let the intended mother sign up, assuming her eggs were used, which may not be the case, but it would cut out the father, who is supposed to be married to or in a marriage-like relationship with the birth mother.

There's an easy fix for this. The form could describe the "mother" who fills out the form as the "mother / surrogate mother" and describe the "father" as the "father / intended father." The surrogate mother would check a box if she is not going to be a "parent", which will remove her from registration as a parent. There would be an additional section for an "intended mother", and the form would require the father / intended father to be married to or in a marriage-like relationship with either the mother or intended mother of the child. The form must also be changed to allow an intended mother to be registered as a parent of the child in cases where her eggs were not use to conceive the child and she did not give birth to the child.

Three, Four or Five?

The Family Law Act describes "intended parent" as one or two people who intend to be the parents of a child and make an agreement, prior to conception, that they will be the parents of the child "regardless of whether that person's or those persons' human reproductive material was used in the child's conception." As a result, and bearing in mind the act's provisions for surrogacy, it is possible that there may be two intended parents who may have no genetic connection to the child and neither of whom carried the child to term.

Doing the math, it seems that the Birth Registration form needs another slot for "parent" to accommodate:

• intended parent 1
• intended parent 2
• a donor of eggs
• a donor of sperm 
• a surrogate mother

Thankfully the fix for this is even easier than the fix required for surrogate mothers who do not intend to be a parent of the child they give birth to.

Filling out the Form

The agency intends to make the paper and electronic forms available only to medical professionals, and prefers to steer mothers to their online registration process. The agency will give mothers the paper form that handles both natural and assisted reproduction on request... which is what you'd better do since their online process doesn't accommodate children born of assisted reproduction.

Let's Mediate!: A Primer on the Useful but Underused Notice to Mediate Regulation

In 2007, the provincial government introduced the Notice to Mediate (Family) Regulation, taking the nuts and bolts of the Notice to Mediate (General) Regulation, which didn't apply to family law matters, and applying them to family law matters. This was a fantastic development as the new regulation allowed people involved in family law actions in the Supreme Court to compel all other parties to attempt mediation.

Sadly, the Notice to Mediate Regulation has languished underused in all parts of the province except Victoria, as I found out when I conducted an informal survey of my former colleagues earlier today. This is really unfortunate as the regulation could be a very useful tool in family law matters, especially those in which a trial is looming. Why? Trials are extraordinarily expensive; mediation much less so.

The regulation is straightforward and easy to follow. Here's how it works.

Serve Notice

Any party can begin the process by serving a Notice to Mediate (Family) in Form 1 on every other party to the action. The Notice cannot be served any sooner than 90 days after the Response to Family Claim is filed, and no later than 90 days before the trial is set to start.

Pick a Mediator

The parties then have 14 days to pick a mediator they all like.

If they can't agree on someone within that period, any party can apply to a roster organization for the appointment of a mediator. (A roster organization would be a group like Mediate BC.) The roster organization then has 7 days to provide all parties with a list of six potential mediators.

Each party then has 7 days to strike the two mediators they like least off the list, number the remaining four mediators in order of preference, and send the list back to the roster organization. A party who fails to get this done within the 7 day period is deemed to accept all of the mediators.

The roster organization then has 7 days to appoint a mediator from the remaining names on the original list, taking into account the parties' preferences as well as important things such as the mediator's experience and availability. If there are no names left from the original list, the roster organization can appoint another person as mediator.

The roster organization must then notify all parties of the appointed mediator.

Pre-Mediation Meeting

The mediator must have a pre-mediation meeting with each party. At this meeting, the mediator is required to screen for family violence and imbalances of power, and determine whether the case is suitable for mediation. The mediator must then discuss a number of practical matters including:

1. the importance of obtaining legal advice;
2. the issues that will be covered;
3. the documents that need to be exchanged between the parties;
4. whether any expert reports need to be prepared; and,
5. scheduling.

The party will then sign the mediator's mediation agreement.

Although there are a few exceptions, the regulation requires each party to attend the pre-mediation meeting, with or without a lawyer, and to sign the mediation agreement.

The Mediation Session

A mediation session must be held within 60 days of the appointment of the mediator, unless everyone agrees to a later date or the court makes an order to that effect.

Each party must send a Statement of Facts and Issues in Form 2 to the mediator at least 14 days before the mediation session is to begin; this form is used to describe the facts and legal basis for the position each party is taking. The mediator will distribute copies of each party's Statement.

On or before the start of the mediation session, the parties must sign a Fee Declaration in Form 3. The Declaration sets out the cost of the mediation and says how the mediator will be paid, either equally by both parties or on some other basis. Although the Declaration is binding on the parties, they can also agree during the mediation that a party will be paid back for his or her share of the mediator's fees.

The mediation session will then begin, with or without lawyers, and, hopefully, wrap up with a settlement.

Conclusion of Mediation

A course of mediation is considered to be concluded when:

1. the parties reach an agreement on all issues; or,
2. the mediation sessions ends without an agreement and without an agreement to continue in mediation.

The mediator must then deliver a Certificate of Conclusion of Mediation in Form 5 to any party who wishes one.

Confidentiality

The regulation provides that no one can disclose, or be made to disclose, any information, documents or opinions obtained in the course of mediation. This applies to the parties, their lawyers and the mediator.

This prohibition applies to the family law action itself, to any other civil action and to any criminal proceeding. The prohibition does not cover the Fee Declaration or anything the parties agree can be disclosed.

Noncompliance

If a party doesn't comply with any of the requirements of the regulation, another party can take the problem to court by serving all other parties with an Allegation of Default in Form 4 along with an affidavit explaining the noncompliance.

If the court concludes that the party failed to comply as claimed, the court may:

1. adjourn the mediation or make an order that the mediation session occur;
2. adjourn the hearing on the Allegation of Default, and order that a party attend the mediation session;
3. adjourn the hearing on the Allegation, and order that a party deliver a Statement of Facts and Issues;
4. adjourn the family law action until the parties attend the mediation session; and
5. make an order for costs.

Forms

The court forms are found at the end of the regulation, here.

I understand from my colleagues in Victoria, and the few in Vancouver who use the regulation, that it can be very effective and that they have each had a number of cases that have settled as a result of course of mediation commenced under the regulation. I can see the regulation being particularly useful where a lawyer or a party is being uncooperative and refusing to engage in settlement discussions.

This regulation is a simple, excellent and affordable, but rarely used, tool. Use it. Please.

Family Law Act Applies to Unmarried Spouses Separating before Act came into Force: Critical New Supreme Court Decision

The new year has gotten off to a very good start. On 30 December 2013, Madam Justice Hyslop released her judgment in Meservy v. Field, a concise and learned decision that unflinchingly addresses one of the most significant questions remaining on the application of the new Family Law Act: do the property provisions of the act apply to unmarried couples who separated before the act came into force on 18 March 2013? The answer to this question is very important because a "yes" would give unmarried spouses a presumptive entitlement to half the family property, while a "no" would leave all unmarried spouses separating before 18 March 2013 stuck making difficult claims under the common law.

Here's the background to the question.

Under the old Family Relations Act, only married spouses could make claims for the division of family assets. Although unmarried couples who had lived together for at least two years were "spouses" for the parts of the act about spousal support, they weren't spouses for the parts of the act about property. This is the definition from s. 1:

"spouse" means a person who

(b) except under Parts 5 and 6, lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender,

Parts 5 and 6 were the parts dealing with property and pensions, and, under s. 56 in Part 5, a married spouse was entitled to 50% of all of the family assets:

(1) Subject to this Part and Part 6, each spouse is entitled to an interest in each family asset ... 

(2) The interest under subsection (1) is an undivided half interest in the family asset as a tenant in common.

To be clear, unmarried couples had no property rights under the old act, with a minor exception for to couples with cohabitation agreements. As a result, to make a claim to property owned only by one person, the other would have to make a complicated claim for "unjust enrichment" under the law of equity and, if proven, for restitution by a "constructive trust." This was all very complicated and rarely yielded a result anywhere near the result the couple would have had if they had been married.

The new Family Law Act made a number of huge changes to the law in British Columbia, and giving property rights to unmarried spouses was probably one of the most significant. This is how the new act defines "spouse," at s. 3:

(1) A person is a spouse for the purposes of this Act if the person

(a) is married to another person, or 

(b) has lived with another person in a marriage-like relationship, and

(i) has done so for a continuous period of at least 2 years, or 

(ii) except in Parts 5 and 6, has a child with the other person.

(2) A spouse includes a former spouse.

This is hugely important because it means that you are a "spouse" for the parts of the act about property and spousal support if you are married or unmarried but have lived together for at least two years. The only couples not shut out are unmarried couples who have lived together for less than two years.

"Spouse" also includes people who used to be spouses. In other words, married spouses who have divorced and unmarried spouses who have separated can also make a claim for the division of property under the new act. This right isn't perpetual, s. 198 imposes a two year time limit:

(2) A spouse may start a proceeding for an order under Part 5 to divide property or family debt [or under] Part 6 to divide a pension ... no later than 2 years after,

(a) in the case of spouses who were married, the date

(i) a judgment granting a divorce of the spouses is made, or 

(ii) an order is made declaring the marriage of the spouses to be a nullity, or

(b) in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.

Under s. 81, anyone who falls within the definition of "spouse" and makes a claim within the two year time limit is entitled to 50% of all of the family property:

(b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.

Okay, so all of that is probably pretty clear. Here's where things get sticky.

The new act was passed by the legislature on 23 November 2011, and received royal assent on 24 November 2011. However, the lion's share of the act — all of the really important stuff — would not come into force until an unspecified date in the future. Although the bill had now become a law, it was not yet operative.

In the middle of June 2012, we learned that that the act would come into force on 18 March 2013.

Let's do some math. Remember how unmarried spouses who have separated can make a claim for a share of property under the Family Law Act? Remember that two year time limit? Well, it looks like an unmarried couple would have had to have separated before 18 March 2011 if they were going to be disqualified by the time limits. And of course, 18 March 2011 was more than nine months before the bill was even tabled in the legislature, and a whopping fifteen months before the effective date was announced.

As a result, it seems to me that anyone who was in an intact unmarried spousal relationship on or after 18 March 2011 would be unable to escape a potential claim under the Family Law Act. Ouch. This is what I wrote on 10 March 2012, before the effective date was announced:

"When the Family Law Act comes into force, for the purposes of the parts of the law that divide property and debt "spouse" will at that moment be defined as including:
1. anyone who is or has ever been in a married relationship, and
2. anyone who is living with another person in a marriage-like relationship and has done so for at least two years, and anyone who has ever lived with someone in a marriage-like relationship for at least two years. 

"The limit to these spouses' ability to make claims for the division of property and debt is that the claim must be made within two years of the date of separation, for unmarried spouses, or the date of divorce, for married spouses. 

"There is no twelve- to eighteen-month period to think about things. The principle that legislation is not to be interpreted as having a retroactive effect has nothing to do with it; the definition of spouse that will be in force when the new law comes into force is expressly worded so as to catch former spouses as well as people in existing spousal relationships. 

"To summarize, as long as the act comes into force on or before 24 November 2013, if you were in a spousal relationship when the Family Law Act became law, you will be subject to the property and debt provisions of the new law. Breaking up now will not save you from the effects of the new law. It's too late and was too late from the moment the bill was tabled. To take advantage of the new legislation, all a spouse needs to do is wait until the Family Law Act comes into force and then file an action in the Supreme Court."

This is what I told lawyers, in a post on the website of Courthouse Libraries BC, who were acting for unmarried couples separating after 18 March 2011 after the effective date was announced:

"Your client will be a 'spouse' as defined by the FLA when it comes into effect on 18 March 2013. Start a Supreme Court action now if there are limitations under the FRA to preserve or some other reason to commence proceedings, state your client’s claim as a claim for a property interest under the principles of unjust enrichment and amend your pleadings to claim under the FLA when it comes into effect."

If I was right in my interpretation, the consequences would be huge. Thousands of people across the province in unmarried spousal relationships after 18 March 2011 would be stuck with a law that gave them property rights, a law that didn't exist when they were together (and didn't exist on 18 March 2011), regardless of what their intentions might have been going into their relationship. As you'd likely guess, lots of people in long-term, unmarried relationships chose that kind of relationship precisely to avoid property issues.

Despite the significance of this issue, we have not yet, at least not until Justice Hyslop's excellent decision, had a case that square on addressed the problem:

• in Trudeau v Panter, the court decided that the parties' relationship was not "marriage-like," and thus the property provisions of the new act did not apply;
• in Reynolds v Huard, the court refused an application to amend the claim to include a claim under the Family Law Act on the basis that the parties had separated in 2003 and the claim was filed in 2008, long before the new act was a twinkle in the Attorney General's eye and well before the two year time limit (a subsequent appeal of the decisions was refused on the basis of the date of separation);
• in Bressette v Henderson, the claim had been amended to include a claim under the new act, however because of the nature and length of the parties' relationship the court made an order under the common law rules saying that the result would have been the same under the new act, and refused to decide whether the new act should apply or not;
• in Lee v Starinovich, the lawyers agreed the new act would not apply, and the property at issue was acquired before the parties' relationship began and thus wouldn't qualify to be shared under the new act even if the new act was applied; 
• in Asselin v Roy, the lawyers agreed that the new act would apply, saving the court from making a decision on the issue; and,
• in P.N.K. v C.L., the court refused an application to amend the claim brought on the morning of trial on the basis that the parties separated more than two years before the new act came into effect.

Okay, that's enough context. Let's get to Meservy v Field.

In the case the parties — who I will call "husband" and "wife" for ease of reference, even though they weren't married — had lived together from January 2009 to September 2011, a relationship what was long enough to qualify as "spouses" under the Family Law Act and ended late enough to fall within the two-year time limit.

The wife started her claim on 14 March 2013, just a few days before the new act came into effect, asking for an interest in property owned by the husband under the old common law rules. The husband wished to make a property claim under the Family Law Act, which the wife said should not apply. The parties went to a judicial case conference on 11 June 2013, where the issue of the new act was obviously raised. The Master hearing the JCC ordered that the parties make an application to determine whether the act applied by a certain date in advance of trial. This was the application heard by Justice Hyslop.

There is, of course, more to to this issue than the two-year limit, although that has proven a useful reason to turf claims resulting from unmarried relationships ending prior to 18 March 2011. The core of the problem is whether the act has a retroactive effect or not, because of the basic legal principle that legislation only has a go-forward effect. This is what I said about the issue in that March 2012 post:

"The principle that legislation is not to be interpreted as having a retroactive effect has nothing to do with it; the definition of spouse that will be in force when the new law comes into force is expressly worded so as to catch former spouses as well as people in existing spousal relationships."

Justice Hyslop started her analysis by quoting Elmer Driedger, a well known authority on the interpretation of statutes, to define her terms (important bits in bold):

"A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event."

She then notes the presumption against retroactivity I referred to above, quoting Ruth Sullivan, another authority on the issue:

"It is not disputed that there is a presumption against legislation being retroactive. For legislation to be retroactive, the legislation must be specific that it is to operate retroactively or 'by express words or by necessary implication'."

A similar rule can be found in s. 3 of the provincial Interpretation Act:

(3.1) If an Act contains a provision to the effect that the Act, or a portion of it, comes into force on a date that is earlier than the date of assent, that Act or portion referred to in the provision

(a) comes into force in accordance with the terms of the provision, and 

(b) on coming into force, is deemed to have come into force on the earlier date referred to in the provision and is retroactive to the extent necessary to give it force and effect on and after that earlier date.

The key, then, lay in whether the Family Law Act is "retroactive" or "retrospective." Justice Hyslop then refers to two passages from Pierre-André Coté, yet another authority on statutory interpretation, for a clarification of the principle and an example of its application in family law matters:

"Normal retroactive effect modifies all the legal consequences of the facts at issue, regardless of the moment when they were accomplished. However, the legislature can decide to modify only the future effects of past facts, while leaving unchanged the consequences which occurred prior to commencement. This second case is termed 'retrospective effect'." 

"For example, a new statute may convey a benefit on all married persons. Here, the date of marriage is of no significance: it is the ongoing fact of being married and not the momentary fact of marriage which results in application of the law. As long as a person’s marital status is 'married' subsequent to the commencement of the statute, they may claim the benefits created by the statute. The date of marriage is irrelevant from the standpoint of transitional law."

Here is Her Ladyship's conclusion (cites omitted):

"[45] [The wife] and [the husband] are spouses (former spouses) by operation of the definition of spouses in the FLA. This status occurred prior to the FLA coming into force. To make a claim for property rights under Part 5 of the FLA, [the husband] had to bring his claim to court within two years of the date when he and [the wife] separated. Without making his claim within the two years, he did not have the status of a spouse to make claims under Part 5 of the FLA. 

"[46] In Re Sanderson and Russell, the Ontario Court of Appeal dealt with a situation similar to that of [the parties]. The issue was the application of the Family Law Reform Act to a “common law relationship” that ended before the FLRA came into force. In Re Sanderson, the parties lived together for six years in a manner sufficient to meet the definition of spouses in the FLRA. ... In the Ontario legislation, the definition of a spouse was that they had to have cohabited together in a conjugal relationship for five years and they had to have resided together the previous year prior to making the application. 

"[47] The FLRA stated that each spouse had a duty to provide support to the other and, upon an application by a spouse, a court may order support to that spouse. ... 

"[49] Mr. Russell resisted the claim for spousal support on the basis:

…it would be unwarranted retrospective application of the Act to hold that such period can be the basis of a claim by Mrs. Sanderson.

"[50] Mr. Russell further argued that the relationship was over when the legislation came into force and that he and Mrs. Sanderson were no longer spouses. The court rejected this argument and stated:

...According to the scheme of the Act this depends upon whether she was a “spouse” at the time of her application. The appellant submits that she was not because: (1) the five years was complete before March 31, 1978, and (2) that part of [the definition] requiring continuous cohabitation within the preceding year (there is no dispute that this means preceding the application) is a limitation period and not really part of the definition of “spouse”. I do not accept this submission. While the one-year period undoubtedly serves the necessary purpose of a limitation provision it is expressly made part of the definition of spouse. Therefore, a person satisfying the requirements of [the definition] is a spouse for the purpose of [spousal support]. … Support then will serve a useful function. With this consideration in mind it seems to me that it is reasonable to regard the final clause of [the definition] as part of the substantive definition of “spouse” and not just a limitation provision. In short, the definition means what it says.

"[51] The court made reference to the policy of the FLRA which:

…is to enable certain persons who are in need to claim support. …regardless of the kind of “spouse” seeking it.

The court stated that with this policy in mind, that:

…it is reasonable to regard the final clause of [the definition of spouse] as part of the substantive definition of “spouse” and not just a limitation provision. In short, the definition means what it says.

"[52] The court concluded that the language in the FLRA had:

…all of the factual ingredients giving a person status to assert a claim for support are contained in the definition provision. This provision, of course, is not an operative one. It defines an existing status, albeit by reference to past events. When the defined term is used in the operative provisions ... it is reasonable to assume that the Legislature intended that a person having the defined status on the date the Act came into force would be entitled to the benefit of the operative provisions.

"[53] The court found that the FLRA was not retroactive because the applicant spouse became a spouse before the FLRA became law. The importance was that she was a spouse at the time she made her application. ... 

"[55] The Ontario legislation gave married and unmarried spouses obligations and rights to spousal support dependent upon their status prior to the legislation coming into force. 

"[56] On March 18, 2013, unmarried and married spouses in British Columbia were entitled to seek a division of 'property and debt' within two years from the date of their separation in the case of person’s in marriage-like relationships and the case of married people two years from the date of divorce. The two year period relates to their status of a spouse. 

"[57] As in Re Sanderson, the date of separation is not just a limitation period, but is part of the substantive definition of a spouse in British Columbia. 

"[58] I declare that the provisions of Part 5 of the FLA are applicable to this proceeding."

And there you have it. The definition of "spouse" in the Family Law Act is not subject to the presumption against retroactivity, the definition has a retrospective effect which changes the future consequences of past relationships. As a result, and pending an appeal decision to the contrary, unmarried persons who met the definition of spouse during their relationship and separated at anytime within the last two years may make claims for the division of family property, and family debt!, under the Family Law Act.

This case is a nice bookend to Smith v Anderson, a November 2013 decision of Master Bouck, which came to somewhat the same result in another application to amend a claim to include a claim under the Family Law Act. In that case, which I've written about previously, the amendment was allowed on the basis that the parties had separated within the two-year time limit; there was no reason not to allow the amendment; and, any prejudice to the other party could be rectified by a costs award. However, as to the critical question of the effect of the amendment, the Master left that to the trial judge:

"[31] ... I am unable to conclude that the claims made in the proposed amendments are bound to fail. It will be up to the trial judge to decide the whether the FLA remedies can be applied."

My thanks to my colleagues Morag MacLeod and Agnes Huang for bringing this important case to my attention.

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. 

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. 

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.

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.