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Colman to parliamentarians: time to support equal shared parenting

Parliamentarians deciding on amendments to federal family laws should acquaint themselves with research on the value of equal shared parenting (ESP) rather than just dismissing the idea out of hand, Toronto family lawyer Gene C. Colman tells AdvocateDaily.com.

Colman, principal of Gene C. Colman Family Law Centre, appeared before the Parliamentary Standing Committee on Justice and Human Rights, which recently considered Bill C-78, the federal government’s wide-ranging revamp of the family law system, including the first major amendments to the Divorce Act in more than two decades.

As a founding member of Lawyers for Shared Parenting, Colman co-authored a multi-group written brief to the committee, and also made oral submissions to MPs, urging them to add a rebuttable presumption of ESP into the legislation, a move he says will take much of the heat out of custody battles. But Colman says he was taken aback by their lack of research on the issue.  

“Judging from some of the questions committee members asked, there does not seem to be an appreciation of the social science among MPs, and indeed one could easily perceive what appears to be a wilful ignorance of the research, notwithstanding the fact that we provided links to all of the sources quoted in our paper. That concerns me,” he says. “Some were clearly antagonistic of the idea, but didn’t seem willing to question their previously held views and look at what the social science studies are indicating.”

Public opinion polls, including a 2017 Nanos poll conducted for the Canadian Association for Equality, find that Canadians are in favour of enshrining a presumption of ESP in child custody cases in federal and provincial legislation.

Colman was involved in preparing a 2014 private member’s bill proposed by an MP in the then-governing Conservative Party, but Bill C-560 failed to attract official government backing and died on second reading in the Commons.

“Back then, we never got the chance to make our case to MPs because prime minister Stephen Harper sent word down that it was to be defeated before the committee stage,” he says. “This time at least we had the chance to submit our brief and try to convince MPs, but some of the questions they asked were a little disappointing.”

His submission includes a summary of the latest work by William Fabricius, an Arizona State University professor who was instrumental in drafting that state’s shared parenting law. Colman notes that the Fabricius paper is a “game-changer” for showing that the more equally that parenting time is shared between separated parents, the better the outcomes for the children.

“I tell people that I will change my mind if they can show me studies that demonstrate ESP is not better for kids, but nobody has taken me up on it because the social science is overwhelming and irrefutable,” Colman says.

The bill left the Commons committee largely unchanged, but Colman now has his sights set on the Senate, which must also endorse the changes before they become law.  

“What we need is a sea change in the system that stops pitting parents against each other,” he says. “Unless they take the bold steps we are urging, parents will continue to try to outdo each other by arguing they should be the primary parent.

“A decent, adequate parent should start off with a presumption of equal decision-making and 50 per cent parenting time, and we would take away a huge incentive for lawyers to exacerbate the conflict. But it’s just a starting point, and the presumption can be rebutted,” Colman adds.

He says he has been disappointed by the strength of opposition to ESP from within the legal profession and would like to see an expert panel struck to tackle the issue, much in the same way the Spousal Support Advisory Guidelines were drawn up a decade ago.

“They consulted widely among the family law bar, and whether you agree or disagree with their findings, you can’t fault them for the study they undertook,” Colman says. “A similar study could look at what sort of social policy and legislative policy we need to help children adjust better to the scourge of separation and divorce, but we’re not doing that.”

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