Lessons Learned from Family Law — The Proposed Presumption in Favour of Shared Parenting

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Part of the fallout from the passage of the Child Support Guidelines in 1997 was a political compromise, engineered by Senator Anne Cools, which required a study to be conducted on custody and access. It was felt that since men were getting such poor treatment with regard to child support, they were at least entitled to have a reconsideration of their rights and obligations with regard to children. The result was the creation of a Special Joint Committee on Custody and Access, which released a report in 1998, entitled For the Sake of the Children (available online at http://www.parl.gc.ca/InfoComDoc/36/1/SJCA/Studies/Reports/sjcarp02-e.htm). The report promotes a presumption in favour of shared decision-making, substantially equal time-sharing, mandatory mediation, and several other principles which appear to be blatantly father-focussed.

In response to the joint committee report, a federal/ provincial “consultation” was undertaken. The consultation report, released in March of 2001, is entitled Custody, Access and Child Support in Canada: Putting Children’s Interests First (available online at http://www.canada.justice.gc.ca/en/cons/consultations.html). The Consultation Document promotes a concept of “shared parenting,” which is said to be an appropriate presumption for all separating families.

One of the overarching observations to be made about the Consultation Document is that the father’s rights lobby has made a significant impact. Father’s rights groups have managed to influence the process so significantly that, as the Ontario Women’s Network on Custody and Access responding brief (available online at http://www.owjn.org/custody/brief-e.htm#_edn54) points out, the word “woman” is not used even once in the entire Consultation Document. The focus is not on children, or caregiving patterns, or the individuality of each family. The main theme is the rights of the fathers.

As a family lawyer practicing in Toronto, I have certainly seen the practical effects of the work that father’s rights advocates have done. Even in the absence of the enactment of general rules with respect to “shared parenting,” the notion that every father has an equal entitlement to custody or to equal time has taken hold of the judicial and public consciousness. All they want is equality, it is said, and how can anybody really argue against that as a general principle? More and more this is the starting point for judges and lawyers who are considering custody and access issues.

What appears to be missing from this analysis and from the Consultation Document is an appreciation of the lessons that we have already learned in Canadian family law. The most significant of these is that, although general rules are attractive, presumptions just don’t work and simply aren’t fair. We saw this issue in sharp relief a number of years ago with respect to mobility. In a matrimonial case about whether a wife could move to a different province with her children, the Saskatchewan Court of Appeal boldly stated that there should be a presumption in favour of allowing a custodial parent, usually the mother, to move (Gordon v. Goertz (1995), 128 Sask. R. 156). This was attractive to many advocates since it reflected reality and fairness and, having the power of a “rule,” it promised to significantly reduce disputes over mobility. However, when the issue was heard by the Supreme Court of Canada, the whole notion of presumptions was dismissed ([1996] 2 S.C.R. 27). The best interests of the child cannot be subject to generalizations. Each case, the court said, has to be decided on its own facts.

Of course, the same analysis holds true with respect to custody and access. The best interests of the child test requires a consideration about this child in this family and this custody and access proposal. But it seems that this basic principle was overlooked during the consultations. So, too, were the many studies and theories that have been contributed by the mental health profession over the last three decades. Although we can argue about whether Judith Wallerstein is on track or completely out to lunch with respect to her long term study on the children of divorce, or whether Garrity and Barris’ theories about appropriate access arrangements for children of divorce are accurate, or whether Janet Johnston or Richard Gardner have it right with respect to parental alienation syndrome, there is one thing that all of these experts agree upon. Each child is unique. General rules cannot be applied in a presumptive way to the lived realities of a child’s existence.

I have certainly seen this in my practice from day to day. I have seen a one-year-old who moves without consequence from one home to the other on an alternating-week basis (of course, his parents never fight, he has never known a unitary family, and his crib has matching bumpers in both houses). I have known five year olds who cannot be separated from their mothers for more than a few hours, and others of that age who have suffered from such serious regression after being in an alternating residence arrangement that drastic measures had to be taken to reduce access. Some kids can understand where they need to be on which day of the week; others can never keep track of their blankie or their baseball glove as they move from house to house. And, of course, the variation among parents and parenting abilities is massive. I once had a case where the husband was a child psychologist, but he had little or no capacity to parent his own children. Some dads are primary care givers. Some are abusive, and many threaten custody and access litigation as a means of effecting a beneficial financial settlement. One has to admit that the same variation exists among mothers, although even that generalization must be tempered by the fact that the vast majority of children continue to be raised by women. How can one set of rules reasonably be applied to all of these families and all of these children? The simple answer is that they cannot.

Another lesson we have learned in family law on a more international level is that these imposed shared parenting regimes have had disastrous results in other jurisdictions. I was at a Conference last year at which Alistair Nicholson spoke about the Australian experience. He is the Chief Justice of the Family Court of Australia and is undoubtedly one of the most well-respected family law jurists in the world. Chief Justice Nicholson speaks with obvious regret about the absolute failure of a presumption of shared parenting in his jurisdiction. When I heard him speak, he began by describing all of the noble aspirations and high ideals that formed the background to the legislation. He then canvassed, in detail, how each hope was smashed by the daily realities in the family court houses in Australia: more motions, more disputes, increased pressure on women to take poor economic settlements in exchange for livable custody arrangements, increased pressure towards mediation in terribly power imbalanced situations — in general, increased parental conflict and poor results for the children in many, many cases.

I was recently on a CBC television show (Counterspin, June 20, 2001) about the proposed presumption of shared parenting. The other panelists were Bonnie Diamond of the National Association of Women and the Law, Senator Anne Cools, and a representative of a father’s rights organization. The level of conflict on the show and the divergent opinions were, perhaps, entirely predictable. But what I did not anticipate was that the common theme of the discussion would actually prove my point. Nobody likes generalizations. Anne Cools flew off of the handle if anyone suggested that there may be violent fathers in society; the father’s rights advocate asked me what planet I was from when I said that men’s claims to custody are being taken seriously and that the days of Kramer v. Kramer are over; the feminists (although of course eminently more reasonable than the others) got very upset when it was suggested that there is plenty of woman-initiated violence in marriages, or that most men are good parents. Each panelist, at one point in the hour, was deeply offended by a sweeping statement made by another. By the time the show concluded, it was perfectly clear: no one appreciates generalizations.

In the context of matrimonial disputes, no one benefits from presumptive rules about these crucial and intimate details of family life, least of all the children. If we stop arguing about the factual elements behind our perspectives and listen to the broad theme that runs through the dialogue, perhaps there is room for some sort of truce. Each family has different dynamics and each child has her own unique needs and abilities. Maybe, just on this one little point, we might actually find some common ground.

Martha McCarthy is a partner at Epstein, Cole, LLP in Toronto. She practises in the areas of family law and equality rights litigation.