The Canadian Bar Association
Family

Social science a step ahead of judicial wisdom in family law

Increasingly, divorced couples are adopting shared parenting arrangements, but initiatives to legislate that approach could pose problems, Toronto family lawyer Herschel Fogelman tells AdvocateDaily.com.

When couples separate, negotiating the residential schedule is often a point of contention, particularly when younger children are involved, says Fogelman, founder and principal of Fogelman Law.

"It is usually easier to negotiate the custodial regime than the actual schedule.  Separated parents tend to be more concerned about time with their children, rather than the mechanics of how decisions are made.  For most children, as they age and mature, there are fewer custodial decisions in any event.  The real issue is when will I get to see them," he says.

Figuring out the residential arrangements is a common problem in almost every separation involving children, Fogelman says.

"There is a difference between custody and residence: custody describes how major decisions are made for children.  The residential arrangements are distinct from the determination of custody," he says.

Six U.S. states have introduced equal shared parenting legislation, formalizing the approach. And there has been movement in Canada to do the same.

Following his election as the leader of the federal Conservative Party, a National Post columnist encouraged Andrew Scheer to revive a pre-election promise made by his predecessor, Stephen Harper, more than a decade ago, to create equal shared parenting legislation.

There was also a 2014 private member’s bill to amend the Divorce Act to create a presumption of post-separation equal shared parenting with the exception where there is suspicion the child might be in jeopardy. Harper killed that attempt, but there is some hope for renewed efforts.

Fogelman says he’s concerned there are too many variables related to residential schedules for the approach to be legislated, but admits it is possible.

“You could have a default custodial regime, to it make it easier or say that absent certain circumstances, parents should share the decision-making in relation to their children," he says. “That would be easier to legislate and a more viable and practical way to achieve legislation than legislation addressing the residential arrangements.

“If there was a default to joint custody or joint decision-making, one party would then have the onus to establish that joint decision-making would not be in the best interests of the children — as opposed to the way it stands now, which is if one parent wants joint decision-making it’s up to him or her to establish to the court that it is in the best interest of the children.”

Fogelman points out that mental health advocates generally support joint decision-making, joint parenting and co-parenting and the courts are catching up.

Courts are obliged to take into account the best interests of the children in any decisions involving them. The problem, says Fogelman, is that is a subjective test. So, for the parents, there is room for contention.

“The social science, which tends to be a step ahead of judicial wisdom, is that, again, absent certain circumstances, joint decision-making seems to be better for the children than having one absent or one in control parent,” he says.

He points to one of his own cases in which the issue of immunization is in dispute. Both parents are looking at the best interests of the child, but their view on the issue of immunization is skewed by their subjective beliefs and understanding, he says.

“I’m not so sure there’s a universal solution but  I do think there’s an option to consider about having the legislation being framed to say 'we believe that it’s in the best interest of children that there be joint decision-making unless a party can prove otherwise,'” Fogelman says.

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