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Equal shared parenting presumption could escalate family disputes

Presumed equal shared parenting (ESP) could end up escalating already-combative custody disputes, says Toronto family lawyer Katherine Robinson.

Robinson, an associate with Shulman Law Firm, tells that by enshrining a default position in law, the government would effectively force parents to denigrate each other if they believe ESP is inappropriate for their individual circumstances. 

“Right now there is no legal presumption in favour of certain parenting arrangements. And while equal shared parenting could work in many instances, there are plenty where it’s not going to be appropriate,” she says. “In those situations, one parent will often feel that they should put down the parenting abilities of the other, as opposed to promoting their own position.

“You are essentially obliged to denigrate the other parent, which I don’t think is going to help the continuing relationship of two parties who, at the end of the legal case, are both parents to their children,” Robinson adds.   

A Justice Canada report from 2000 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 just 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.  

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

And while Robinson has sympathy for the viewpoint that traditional gender roles sometimes place fathers at a disadvantage when it comes to court-approved parenting time schedules, she says a legal presumption is not the best way to tackle the issue.

“I think there is still some expectation that mom will get more time than dad, and we are working to push back against that by saying that in some instances, shared parenting is appropriate,” she says. “But it’s not up to the legislature to mandate an arrangement for a particular family.”

Instead, she says the court should remain guided by what’s in the best interests of the child at the centre of a dispute.

“If a 50-50 split is in the best interest of the child, then it’s a very possible outcome, but it very much depends on the family you’re talking about,” Robinson says.

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