Michael Ford (post until Oct. 31/19)
Family

Child custody reform — Bill C-78 federal government divorce reform

By Gene C. Colman

Child custody law needs reform! The family rights movement in Canada has long been advocating for real change in our broken child custody system. In 2014, Bill C-560 was voted down at second reading in Parliament, even though the then-ruling Conservative Party officially supported equal shared parenting. Now, the majority Liberal Government has introduced Bill C-78. It is an admirable "first move". It is not enough.

Bill C-78 fails to give sufficient credence to the views of the vast majority of Canadians who support a rebuttable presumption for equal shared parenting when it comes to "child custody" law. The government apparently refuses to adopt the unassailable social science consensus that supports shared parenting as the starting point for "best interests of the child." Our "broken" family law system needs fundamental change and not just a "tune-up."

I personally applaud many of the legislative proposals in the Bill including:

  • replacement of the polarizing "custody and access" terminology with "decision-making responsibility" and "parenting time";
  • encouragement of non-adversarial dispute resolution processes like mediation;
  • explicit recognition of family violence considerations (although I take serious issue with the very wide definition of family violence about which I will have more to say in a subsequent blog post);
  • adoption of a heretofore missing factors list to guide "best interests of the child" decisions;
  • explicit provision for the voice of the child to be heard;
  • facilitation of contact for grandparents and family members;
  • provincial child support recalculation services;
  • more efficient inter-jurisdictional procedures; and,
  • incorporation of international law commitments into domestic law.

So there is indeed much to praise in this federal government initiative. Let us not hesitate to give praise where praise is due.

Approaching 'best interests' from the child's perspective in terms of parent/child relationships is key to modernizing and humanizing a profoundly broken system. It's not about mothers' rights or fathers' rights; it's about children's rights. Those who demonize advocates like me for our support of a more sensible and humane and child-centred system, like to call us "the father's rights movement" as if that apparently pejorative designation should serve to automatically discount our views.

In point of fact, we in the "family rights" movement most certainly support children's rights to enjoy maximum time with both parents. If that happens to involve fathers generally securing more time to parent their children, then I proudly plead guilty as charged.

My good friend, Glenn Cheriton, president of the "Canadian Equal Parenting Council", has told me that Bill C-78 can be considered as a tune-up for an old car while retaining square wheels. He sensibly argues that until the government bites the bullet and makes equal parenting a starting point, or puts an onus on the parent seeking to deprive the child of the other parent, family courts will remain inaccessible and inefficient for parents. I agree.

Paulette MacDonald is a long-time advocate for the rights of children. She is also a distinguished member of an international organization called "Leading Women for Shared Parenting". Paulette sensibly states: "What's needed in Canada, as has been recognized for years by Canadian citizens, is fundamental child-focused structural change based on the principle of continuity of relationships for the child. The starting point to fix our broken system must be rooted in a rebuttable presumption for equal shared parenting."

Brian Ludmer is a fellow Toronto family law lawyer who co-founded "Lawyers for Shared Parenting" with me. He is a world-renowned expert and public speaker on matters connected with "parental alienation." He states: "The scientific consensus around shared parenting is now so strong that social scientists have concluded that it can definitively be stated that children's outcomes in family separation are best protected with equal parenting. Further, public opinion polling over more than two decades has consistently confirmed that more than 80 per cent of the Canadian public (viewed across any demographic, including age, gender, region and political affiliation) supports equal shared parenting. It's time for the legal community to accept that the starting point for helping families restructure after separation should be equal shared parenting."

The public support for real change in child custody law is clearly out there. The social science evidence is literally overwhelming. Equal shared parenting should be the legislated default position, absent neglect, proven abuse, or other very good reason to deprive a child of meaningful contact with all parents. Hopefully, with public participation, our members of Parliament will finally see the logic in the positions that I advocate here.

In my next blog post on Bill C-78, I will lay out a number of the areas where the Bill could be improved. Stay tuned for an even better tune-up!

Read More at Gene C. Colman Family Law Centre Blog

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