Michael Ford (post until Oct. 31/18)
Family

Divorce Act amendments raise red flags: Colman

Amendments to the Canada Divorce Act in Bill C-78 are a major step backwards and ignore overwhelming social science research showing the best interests of children are served when both parents play substantially equal roles, says Toronto family lawyer Gene C. Colman.

Colman, principal of Gene C. Colman Family Law Centre, says the proposals, which passed first reading and following second reading expected in the fall, will be on their way to committee hearings in Ottawa, make it more complex to determine the best interests of the child and will only create more litigation.

“I apologize to my colleagues practising family law, but we need to step back here and look beyond the billables and find ways to take conflict out of the process and avoid going to court on these issues,” Colman tells AdvocateDaily.com.

Colman has been actively involved in lobbying for reforms for many years and is writing extensively on the issues raised by C-78, praising some of the changes while criticizing others.

He says his main contention is the failure to recognize a “rebuttable presumption for equal shared parenting” (RPESP) as the default position for any divorce negotiation.

Decades of research by reputable social scientists shows children fare better when their parents share responsibility and residential care on something that approaches a 50-50 basis, Colman says.

“Of course there are instances where equal shared parenting isn’t beneficial and that’s why it can be rebutted on defined grounds,” he says. “If they had enshrined that into the amendments I would have been leading the band in support of the Liberal government.”

Despite Colman’s advocacy on this point and his involvement with groups lobbying for equal shared parenting, the arguments are being rejected both by Ottawa and the Canadian Bar Association's Family Law Section.

A previous private member’s bill that would have brought the equal shared parenting as the starting point into law under the Conservative government was defeated at second reading.

Things have changed since the ‘modernized’ Divorce Act came into effect in 1986, he says, but there still seems to be a widespread judicial bias towards mothers as the primary caregivers of children while fathers are assumed to be better suited to fulfill a less responsible role.

"In reality, most parents are capable of assuming significant roles and this ought to be the judicial starting point," Colman says.

He says the roots of the political discussion that ultimately led to many advocating a rebuttable equal shared parenting presumption stretches back to the special joint committee report of the Senate and the Commons — For the Sake of the Children

"That report, published in December 1998, did not go as far as recommending a rebuttable presumption for equal shared parenting, but its recommended progressive reforms certainly provided an impetus for those who believed that this was the correct way to proceed," Colman says.

“The rebuttable presumption isn’t a one-size-fits-all, but rather about what social science research and multiple studies have demonstrated is generally in the best interests of the children,” Colman says.  "There will still be cases where the presumption would be rebutted in the best interests of children such as demonstrable abuse, proven incompetence that would endanger the child or significant geographical distance between the parents."

The Bill C-78 amendments appear to demote one of the most positive aspects of the current Divorce Act, namely the pre-eminence of the “friendly parent” provision, he says.

"The bill breaks it up and equates that factor with a plethora of others, notes Colman.  “That’s why this new Bill is a retrograde step for children and a potential boon for more litigation, not less.  That might be good for lawyers, but it is certainly not good for Canadians.”

Colman says leading social science research on the issue clearly points to the merits of joint physical custody.

“Professor Linda Nielsen looked at 60 studies published in academic journals or government reports on sole physical custody versus joint physical custody (JPC),” he says. “Some 34 found that JPC children had better outcomes on all measures of behavioural, emotional, physical, and academic well-being and relationships with parents and grandparents. The large majority of the other studies found that JPC children did better on most measures.”

Similarly, University of British professor Edward Kruk also supports a default of ESP, Colman says.

"If the social science is not enough, then the government would do well to pay heed to multiple professionally conducted national polls over the last 15 or so years," he says. "Support for the rebuttable presumption consistently runs around 78 to 80 per cent, crossing all societal lines be they geographical, gender, political party or age.

“Support is persistent, huge and unwavering.  Adopting equal shared parenting is a political winner, even if the measure does not find favour with the majority of the family law bar," he says.

Colman says the concept is gaining increasing acceptance in Europe and across the U.S., with many states having passed pro equal shared parenting measures and even more state legislatures actively considering the issue.

“It’s not about fathers’ rights; it’s about children’s rights to enjoy a decent relationship with both parents”, he says.

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