It’s supported by an overwhelming majority of Canadians – yet for some reason, it cannot make it through the House of Commons.
Equal parenting. What does it mean? At its simplest, it means that both parents have the same amount of parenting time with a child.
If our family laws were amended to include a presumption in favor of equal parenting, it would mean that when a couple separates, the default position would be that both parents would divide parenting time equally between the two of them.
Of course, this would simply be a presumption. If they wanted to, the parents could agree to some other arrangement. Or, if one parent felt that there were good reasons why parenting time should not be equal, they could ask a judge to decide what the appropriate parenting arrangement should be in the circumstances.
Right now, there is no presumption in favor of equal parenting in Canadian law.
Notably, while Canadians overwhelmingly support a presumption in favor of equal parenting – there is one group of Canadians that actively opposes it: family lawyers. (See, for example, the submissions of the National Family Law Section of the Canadian Bar Association)
Of course, when family legislation is clarified to reduce and streamline family law disputes (such as occurred when the Federal Child Support Guidelines were legislated)… it clarifies and streamlines family law disputes. All family lawyers know that the chances of getting a judge to depart from the Federal Child Support Guidelines are very low – and almost no one litigates this. The clarity and consistency of the law has a direct impact on the length and complexity of family law disputes – and a direct impact on the family lawyer’s billings.
A presumption in favor of equal parenting would resolve many stubborn (and profitable) parenting disputes, and would be a positive development for children generally. Unsurprisingly, having your ex air your dirty laundry in written court documents, and refer to you, in writing, as the uninvolved/neglectful/indifferent/lazy parent, does nothing to foster a cooperative parenting relationship. The “best interests of the child test” should not lose sight of “the best interests of children, generally”. Many children would not be the subject of parenting disputes if there was a presumption in favor of equal parenting.
Family lawyers know this better than anyone. They know that a presumption in favor of equal parenting would drastically reduce the conflict between separating couples, the same way the Federal Child Support Guidelines have drastically reduced conflict with respect to child support.
To be clear, not all family lawyers are against a presumption in favor of equal parenting. Certain prominent family lawyers were heavily involved in the drafting of Bill C-560. This private member’s bill sought to amend the Divorce Act so that judges would be required to apply the principle of equal parenting unless it could be established that the best interests of the child would be substantially enhanced by allocating parental responsibility other than equally. The bill failed on May 28, 2014.
Much of the anti-presumption camp’s arguments can be summed up as follows: “Any decision of the court must be in the best interests of the child. Any presumptions that take away from that single guiding rule should be rejected.”
What this argument fails to recognize is that a presumption in favor of equal shared parenting is in line with the best interests of the children, generally. Studies show that children with two active parents following separation fare better. To the extent there is a need to depart from that presumption in the case of one particular child, that would be allowed – because that’s all a presumption is.
The current “best interests of the child” test, which is the gold standard in family law, is so vague and subjective that it frequently leads to a prolonged tug-of-war over children who are caught in the middle. A presumption that is in line with prevailing social and scientific evidence and which reduces conflict between parents is a sound policy decision.