Divorce Act ‘not meeting needs of children’: Ludmer

By Tony Poland, Associate Editor

The current system to decide child custody “is a complete failure,” Toronto family lawyer Brian Ludmer said during appearances before federal government hearings to amend the Divorce Act.

In submissions to the House of Commons and Senate Committee on Legal and Constitutional Affairs, Ludmer, principal of LudmerLaw, said the Act “is not working and not meeting the needs of the children it’s meant to protect.”

“This debate can basically be summarized as the battle between myths and facts,” he said. “The primary myth is that the current system actually works and actually does what it says it does, which is trying to advance the best interests of children.

“It’s built on a failed foundation of assumptions as to how it actually works. When you actually practice in the trenches and see how it works, those cracks in the foundation, those missing pillars of the foundation become apparent.”

Ludmer, who is an advisory board member to the Canadian Association for Equality, the Parental Alienation Awareness Organization and the International Support Network for Alienated Families, as well as a co-founder of Lawyers for Shared Parenting, appeared in hearings on Bill C-78, which marks the first major update to federal family law in more than two decades.

While noting that “there is a lot that’s laudable” in the bill, he said, “it fails to make any fundamental change.

“If you start with a system that’s broken, because it’s built on a series of failed assumptions, you can’t rescue it with technical language,” he said.

Studies have shown “that children’s outcomes from divorce are substantially improved when you have two primary parents” caring for them, Ludmer told the Senate committee.

“Entirely missing from the debate is where is the Canadian public on this? We have decades of public opinion polls in Canada that show that over 80 per cent of decided participants are in favour of equal parenting,” he said. “That cuts across almost any demographic: age, religion, political affiliation and gender. The women of Canada overwhelmingly want equal parenting.”

There are many flawed assumptions made about the current system, including the notion that “a judge will get it right,” said Ludmer.

“That assumes you have two parties and two lawyers and an unlimited time for a trial,” he said.

However, more than half of family law litigants are self-represented and “are not going to be able to marshal the arguments, the case and the law to advance their view of the best interests of the children,” Ludmer said.

“When a self-represented litigant goes up against a lawyer, you are not going to get a result that advances the best interests of the children,” he told the committee. “When there are two self-represented litigants, the trial is very unwieldy, indeed often chaotic, and usually you are not going to get the right answer.

“Judges themselves, when they are polled and when commissions and studies are done, say they also doubt about whether they’re getting it right.”

Ludmer said the vast majority of cases don’t get to a trial because people don’t have the money or cannot wait.

He said a parent will settle or abandon “the pursuit of a parenting plan they truly believe is in the best interests of their children because the other side is better funded or is prepared to fight it out.”

“Robust, almost indisputable” research ratified by experts from around the world, “substantiates that the closer you get to two primary parents after separation, the better the outcome for children,” Ludmer told the hearing.

“Equal shared parenting is not for everyone, but it is for about 90 to 95 per cent of the families who litigate,” he said.

“When you go to the public opinion polls and see the people who have lived through the system and see how it actually works, it is inescapable. This system doesn’t work and is harming our children.”

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