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Divorce Act revamp ignores value of equal shared parenting: Ludmer

Proposed changes to Canada’s Divorce Act fall short by failing to make equal shared parenting (ESP) the starting position in custody disputes, Toronto family lawyer Brian Ludmer tells AdvocateDaily.com.

Bill C-78, introduced in the House of Commons in May, marks the first major update to federal family laws in more than two decades and announced the government’s intention to replace terms including "custody'' and "access,” with more child-focused ones such as “parenting orders” and “parenting time.”

The new Act also details a non-exhaustive list of the factors that will go into a determination of what is in the best interest of the child, encourages parties to stay out of court and enhances family support enforcement.

Despite that, Ludmer, principal of LudmerLaw, says the list of reforms is distinctly uninspiring.

“There’s nothing new. Many of these technical changes have been on the agenda for a long time, and don’t do much more than bring the federal regime more into harmony with provincial legislation,” he says. “The real disappointment is that it doesn’t tackle the biggest and most pressing issue, which is that litigation itself is harmful to children.”

Ludmer says the current “dysfunctional” system encourages litigation by suggesting every family needs a customized parenting solution when the reality is much simpler.

“There is no social science research that suggests we’re producing better outcomes for children right now. When you read the current, definitive social science literature, you understand that the closer you get to equal parenting, the better it is for children,” he says.

By reflecting that research in legislation that imposes a rebuttable presumption of 50-50 parenting following a split, Ludmer says lawmakers will also take the pressure off the already overwhelmed family law system.

“The starting point would match the science but would allow for a departure where it is demonstrably warranted,” he says, suggesting parents who travel extensively for work or who suffer from addiction would not be suitable for an equal split.

“For the vast majority out there, it will work,” Ludmer adds. “Most of the fighting that currently takes place in court is in a fairly tight zone between 25 and 50 per cent parenting time, and at some point, we have to ask ourselves whether it’s worth it. There’s no science to support a judge’s feeling that 62-38 or 55-45 is the sweet spot for that family or that it produces better outcomes.”

Ludmer helped spearhead C-560, a 2014 federal bill that would have legislated a rebuttable presumption of ESP, but it was defeated on second reading in the House of Commons.

The U.S. state of Kentucky recently adopted its own legislation using similar language to the previous Canadian bill, and Ludmer believes momentum is building for a fresh push in this country.

A Nanos poll conducted in the Fall of 2017 by the Canadian Association for Equality found that 35per cent of Canadians strongly support the creation of a presumption of ESP in child custody cases in federal and provincial legislation. A further 35 per cent somewhat support it, while just nine per cent somewhat oppose it and only four per cent strongly oppose it. The remaining 17 per cent responded that they were unsure of their position on the issue.

Calculated based on decided voters, over 80 per cent of the Canadian public is in favour of equal shared parenting and this is consistent with prior polls over the past two decades.

Ludmer wonders how successive governments are ignoring the views of the Canadian public based on their actual experience with the current system.

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