Myth busters: the reality of equal shared parenting

By Staff

Divorcing parents clashing over custody and access issues often ignore the most obvious solution to the impasse because it is so unfairly attacked by critics despite the rock-solid science, Toronto family lawyer Gene C. Colman tells

“There are so many myths around the rebuttable presumption of equal shared parenting (ESP)," says Colman, principal of Gene C. Colman Family Law Centre. “It is an arrangement that’s structured in the best interests of the child and is more workable than any other.”

Colman will present a webinar Oct. 15 exploring eight important myths around ESP.

Myth 1: ESP is about parental rights, not children’s rights

“The reality is ESP is a way to fix a broken system," Colman says. "Mom has a right to time with the kids as much as Dad does, but why do we focus on the rights of the parents when the emphasis should be on the rights of the children.”

Despite some improvements, he says the default thinking remains that the children are better off with their mother.

“I had a client whose ex took off with the kids and moved 150 km away without telling him,” Colman says. “He went to a duty counsel at the court who told him: ‘Forget it, nothing you can do. Dads have no rights.’ That’s just not true, but that’s the perception. The courts frown on unilateral action, but duty counsel believed there was nothing that could be done for this parent.”

Myth 2: ESP is not about what’s best for children

One of the challenges in family law matters is that there’s no legal definition for the best interests of the children, either in domestic or international law, Colman says.

“All things being equal, children should spend the same amount of time with each parent. The presumption of the best interest of the children in the context of an ESP rebuttable presumption still allows for judicial discretion,” he says. “This is not an all or nothing. We’re talking about equal time and equal decision-making, focusing on what’s best for the children. Global studies support this contention.”

Myth 3: ESP is a one-size-fits-all solution

“Detractors contend that ESP doesn’t account for the individual needs of the child in each situation,” Colman says. “Of course, you have to be sensitive to the unique components in each situation, but the fact is most cases don’t go to court. They’re settled by negotiations in the shadow of the law. The current system perpetuates the sole maternal custody model, whereas the rebuttable presumption of ESP is a more viable starting point for the continuity of parenting.”

Myth 4: ESP promotes conflict

“This is just not true,” he says. “Certainly ESP may not be appropriate in all cases, but the research shows it actually reduces disagreement and high-conflict situations.”

Myth 5: ESP encourages litigation

There’s no evidence for this claim and international studies suggest that in such cases, there’s a decrease in litigation and an increase in a mediated resolution, Colman says.

“We got rid of a great deal of litigation in 1997 by setting up a support system based on the number of kids and income,” he says. “Here’s what you make, this is what you pay. This is the sort of approach we need in constructing parenting plans.

Myth 6: ESP is too radical

“The reality is the presumption of parental continuity, like the presumption of innocence, is a fundamental tenet of law to avoid needless litigation,” Colman says. “There is no reason for otherwise good parents to have to keep proving themselves,” he says.

Myth 7: ESP is a loophole to avoid paying child support

“The empirical evidence suggests otherwise,” Colman says. “In fact, often support stays the same or increases because there is a cost in running two households. In s.9 of the Child Support Guidelines, it explains that a parent who has custody of a ‘child for not less than 40 per cent of the time over the course of a year’ may — with a court order or written agreement — adjust the amount of the child support, recognizing the increased costs of shared custody and taking into account what each parent earns and needs to live on.”

Myth 8: ESP didn’t work in Australia

In fact, public support for ESP in Australia is “through the roof,” Colman says. “It started at 77 per cent support before the legislation passed around 2013 or 2014 and rose to 81 per cent support since then.”

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