The Canadian Bar Association
Family

Rise of co-parenting in family law

By Kathryn Hendrikx

A recent report establishing some form of joint custody or shared parenting as the most common post-separation parenting arrangement is in line with what I’m experiencing in my family law practice. This is a growing trend and when discussing parenting plans I use the language of "co-parenting."

The report, prepared by family law researchers with the support of the Canadian Research Institute for Law and the Family, includes results of a survey involving a group of family lawyers and judges from across Canada who attended a national program in B.C. in July 2014. They were asked about their views and experiences with shared parenting, mediation and self-representation.

The responses established that some form of shared parenting is the new norm, and I agree. 

The survey also showed “strong professional support for reforming the parenting concepts in the Divorce Act, but clear opposition to a presumption of equal parenting.”

While the concept of co-parenting that I use removes the language of custody/access, it does not presume an equal split of parenting time. The concept of "equal" in family law is nuanced and should not default to a mathematical calculation. Equal in family law means, from my perspective, active parenting for both parents, quality of parenting and the development of a relationship between both parents and their children in separate environments.

The presumption of “equal parenting time” is, in my opinion, too blunt an instrument to be functional in the practice of family law. Each family is different and each restructured family after separation is different. There is no one-size-fits-all approach when it comes to parenting, which makes equal parenting time as a starting point a step towards potential conflict.  

I am always amazed at the spectrum of parenting techniques which work for families. I think this uniqueness and autonomy must be respected to some degree, as long as, of course, the benchmarks for care and control are met. By this I mean issues relating to family violence, power imbalance, mental health or addictions, which would be a barrier to co-parenting, until such time as these underlying issues were addressed.  

Our new reality is that many parents have assumed or been put into non-traditional roles. Fathers homeschool, mothers are higher income earners, both mom and dad share parental benefits, like employment insurance if they are eligible, or both parents may work from home. The new reality is that the words “custody and access” are outdated and do not feel representative of what is happening in society. Co-parenting is co-operative and fundamentally supports the roles of both parents.

In family law, the intent of the file should be focussed towards settlement or resolution and to address the future of the existing family. Even a settlement does not create a final solution. It simply provides a solution that is pracitcal in the short to mid-term and is always subject to changes as the family circumstances change.

Family law is the business of families, but the business of families is also emotional. This report is a step in the right direction in encapsulating the issues we’re seeing on a day-to-day basis.

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