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Presumption of shared parenting not the best route: Townsend

A move to amend the Divorce Act and establish equal shared parenting (ESP) as a presumption in child custody cases may not be a good idea, says Toronto family lawyer and life coach Leanne Townsend.

“There are many cases where shared parenting is great and there’s a great deal of research that shows children fare best when both parents are very involved — both in qualitative and quantitative ways. And certainly more fathers are much more involved with their children than they were generations ago,” she tells AdvocateDaily.com.

“But I think creating a presumption that this should apply in all cases is not a good thing because each family needs to be looked at individually to determine what is in the best interests of the children.”

In 2014, a Conservative backbench MP from Saskatchewan introduced Bill C-560, which, if passed into law, would have legislated a rebuttable presumption of ESP, but it failed to pass second reading in the House of Commons, it was reported at the time. Work is ongoing to redraft the bill.

A Nanos poll conducted last year for the Canadian Association for Equality, a fathers’ and men’s rights group, found that when asked if they support legislation to create a presumption of equal shared parenting in child custody cases, almost three-quarters of respondents said they “somewhat” or “strongly” supported the move. Nine per cent said they were somewhat opposed and four per cent said they were strongly opposed. It is not known how many people were surveyed.

“I’m always nervous about a presumption,” Townsend says, noting that if such a law is passed, parents who don’t want a shared custody arrangement would have to bring evidence to show the court why it shouldn’t apply in their case, and that could add to the cost of litigation.

“In many cases, I think shared parenting is great. If it can be done, I think it’s probably ideal. But I just don’t think we need to have it as a legislated presumption,” she says, adding that such a law would “usurp” the role of judges in determining what’s in the best interests of a child.

Townsend says another factor to consider is child support, which is tied to custody arrangements, and ESP could lead to problems. Shared parenting may create complications in applying the Federal Child Support Guidelines, she says.

“There are adjustments when the child isn’t with one parent significantly more than the other, and I think the shared parenting concept creates some problems with respect to child support,” she says.

“Child support is tied in some ways to the amount of time that children are with each parent,” Townsend says, noting that there are situations where the mother, for example, “doesn’t want to decrease the amount of time the children are with her because she’s going to get less child support, or the father wants to increase his time with them because he just wants to pay less child support.”

Townsend calls it a “win-win for everyone” when parents are able to work out an arrangement where both spend significant amounts of time with their children.

“But there are obviously many situations where parents don’t agree on that type of situation or it’s just not feasible, and then to have some sort of legislated presumption unless you can show otherwise I think creates problems.”

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