“Shared Parenting means that a child has a right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by application of both parents’ wisdom, judgment and experience. The child does not forfeit these rights when the parents divorce.”

It’s Time to Legislate Shared Parenting

It seems every decade of so social and legal utopians resurrect the idea of a unified family court, mandatory mediation and other assorted nostrums. The current incarnation is entitled “The Justice Review Task Force.”

Its hypothesis seems to be that separating couples retain sufficient rationality to resolve their issues, but for the structural impediments in the existing legal system. There is some truth to this where both members of the couples in fact have maintained a semblance of rationality.

The problem is that many high conflict family files, particularly those involving children, all too often have one party who not only lacks rationality but typically exhibits traits of one or more personality disorders. No tinkering with the administrative structure is going to help resolve those files.

The most difficult cases are those where one parent is more or less sane, rational, and willing to compromise. But they are up against a former spouse who typically seeks to “own” the children and needs them as emotional crutches to support some psychological void in their own personality. As well, the lure of child support payments plays an inordinately destructive role in too many custody disputes. No degree of jerry rigging administrative procedures is going to help the children of that couple. For such couples, what is require is a change in the law.

Several decades ago, similar attention was given to the problem of how to avoid litigation arising out of wives suing husbands for a half interest in “the ranch” when all the family property was in the husband’s name. The ultimate solution was a change in the law: a rebuttal presumption of 50/50 ownership. Litigation over property has not disappeared since then but it certainly has been lessened. A husband of a 12 your marriage sits down before his lawyer with a list of all the assets that are in his name and he is told right off the top that everything is going to go pretty much 50/50, so “save yourself the money and agree to it and get on with other issues”. The burden is now on the party claiming it should not be an even division. It took a few years but the public has a basic understanding of that principle now.

Judges and Masters are making an increasing number of equal-time-shared parenting orders. They do this both on interim applications and at trial. Various types of parenting plans resulting in approximately equal time for children with both parents are being ordered. Psychologists support it.

Many more separating parents are agreeing between themselves to shared parenting, even with children of very young years.

However, it still remains the expensive and time consuming effort that a parent seeking shared parenting has the burden to establish that it is in the best interest of the child. This typically requires Examination for Discovery, Section 15 reports (custody and access) as well as other expert opinions where the results of interim applications seeking shared parenting fail to satisfy the application and it goes on to trial. For many, trial is the only effective forum for a parent to “prove” shared parenting is in the best interest of the child.

The time has come for the Federal and Provincial legislators to place a presumption of equal-time-shared parenting in the appropriate legislation. The burden should shift to the person claiming that equal-timed-shared parenting will not work.

The author suggests that if the legislatures did with parenting schedules what they did with property a few decades ago, much litigation could be avoided, and if not avoided, simplified.

However, merely enacting a law saying there shall be a rebuttable presumption of equal-time-shared parenting will be insufficient. What may or may not constitute evidence capable of rebutting is vital and must be clarified. Otherwise, we will be no further ahead than we are with the subjective concept of “best interest of the child.”

Some of the most commonly used reasons by Master and Judges to not grant equal-time-shared parenting are all, at heart, subjective. They are based, in the main, on unsubstantiated claims by the parent seeking to deny shared parenting. They are not based on any empirical evidence that the particular issue is, in and of itself, destructive of, or preventative of, or inappropriate for the amount of time that the child actually spends with both parents. These issues are such things as lack of communication between the parents, unsubstantiated claims of stress upon a child, uncorroborated allegations of abuse of a parent, or past or present conduct between parents that does not affect the children, the most commonly waved flag, “primary parent”.

There is no evidence to support the proposition that a child above the age of two or three years of age will grow up a particular way determined by whether it was raised by the “primary” or so-called “secondary” parent. And yet this mantra prevails throughout the land. Legislation containing a rebuttable presumption on parenting would force the parent relying upon the concept of “primary parent” to prove that it has any evidentiary meaning.

The statutory amendments which would go some way to breaking the parenting schedule log jams cluttering up the court system would be as follows:

The Family Relations Act of B.C. shall be amended:

  1. By the addition of a new Section in Part – Child Custody, Access and Guardianship: “There shall be a rebuttable presumption of Shared Parenting. Any judgement of a court that rebuts the presumption of Shared Parenting shall contain the reasons for the rebuttal and the evidence in support of the reasons.”
  2. By the addition to Section 1 (Definitions) of: Shared parenting means that the children of separated parents shall spend equal time with both parents.

The following factors may not be taken into consideration by a court as rebutting the presumption of Shared Parenting:

  1. The lack of communication between the parents;
  2. Allegations of stress on a child without evidence from a physician or registered psychologist;
  3. Allegations of abuse by a parent toward a child without corroborating evidence;
  4. The past or present conduct of the parents towards one another;
  5. Primary parent.

The Divorce Act of Canada shall be amended:

    1. The substitution of existing Section 16 (10) with: “There shall be a rebuttable presumption of Shared Parenting.” “Any judgement of a court that rebuts the presumption of Shared Parenting shall contain reasons for the rebuttal and the evidence in support of the reasons.”
    2. By addition to Section 2 (Definitions) of: Shared parenting means that the children of separated parents shall spend equal time with both parents.

Finally, a court that rebuts the presumption should state clearly the reason for doing so and the evidence upon which it is based. Too many parents leave court with no understanding as to why matters turned out the way they did. Counsel have no basis upon which to give advice as to appeal.