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Child's rights trump parent's in custody arrangements

The best interests of children should always come before parental custody rights, Toronto family lawyer Jennifer Samara Shuber tells AdvocateDaily.com.

According to the National Post, six U.S. states have introduced presumed equal shared parenting (ESP) legislation this year, with more expected to join the crowd in the future.

But Shuber, a lawyer with the family law practice group at Beard Winter LLP, says Canadian jurisdictions should not follow their example.  

“The idea that there should be equal parenting by default is one that I completely disagree with,” she says. “This is not a parental rights issue. The central test in family law is — and should remain — what is in the best interests of the child.

“That is what should take precedence over any parental right to an equal place in their child’s life,” she adds.

In 2000, a report by Justice Canada found that mothers were awarded sole custody in around 79 per cent of court-ordered custody arrangements, compared with just seven per cent of fathers. Shared custody resulted in only 13 per cent of cases.

In 2013, private member’s bill C-560 proposed by Conservative MP Maurice Vellacott attempted to redress the balance with an amendment to the federal Divorce Act that would have legislated a rebuttable presumption of ESP.

However, the bill was defeated on second reading in the House of Commons, despite polling that suggested the vast majority of Canadians would support such a measure.  

But Shuber says federal lawmakers got it right the first time around.

“I don’t agree with the notion that presumed equal shared parenting is the way to level the playing field in Canadian courts or that the state is taking away any rights from parents by doing a case by case custody analysis,” she says.

Instead, Shuber says courts should continue with the individual approach they currently take to custody decisions.

“We have to look at things case by case, and assess the actual relationship between the particular child in front of a judge, and that child’s relationship with each of her parents before determining what the arrangement should be,” she says.

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