Equal Parenting Private Member’s Bill C-422 (Canada)
Maurice Vellacott
- To clarify that Parliament recognizes that society has an interest in ensure that children do not lose either parent unnecessarily, and to move away from the model of "custody" to the model of "parenting time".
- To define "best interests of the child" as served by maximal ongoing involvement by both parents with the child, to be implemented in the Divorce Act as the rebuttable presumption of equal parenting as the starting point for judicial deliberations.
- To clarify relocation determinations as recognizing right of the child to continuity of relationships with both parents and placing the onus on the parent moving to justify a change to a parenting time agreement.
- To require systematic collection of consistent court statistics.
- To clarify that Parliament recognizes that society has an interest in ensure that children do not lose either parent unnecessarily, and to move away from the model of "custody" to the model of "parenting time".
Background
The federal government is constitutionally responsible for marriage and divorce, and has presumed to include the custody of children in the Divorce Act. Currently, approximately 90% of separating children end up with what amounts to a sole custody arrangement, although over 2/3 of both fathers and mothers seek joint custody going in to the process (Statistics Canada). Parents lose the right to parent their children in the process because of high legal and courts costs, when one side runs out of money, or because perceived bias of judicial decision-making leads one side to abandon a legal conflict so that the children will not be drawn into the battle. Only in a small minority of cases are "custody" cases decided by a full trial and judicial decision, because few parents can afford it, and fewer subject their children to it, but many cases are decided "in the shadow of the law" which appears to strongly prefer sole custody.
The last significant reforms to the Divorce Act were in 1986, with reforms proposed by Liberal Justice Minister Mark McGuigan, and subsequently passed into law by Conservative Justice Minister John Crosby. Reforms included the addition of the "friendly parent rule" allowing Court preference for custody to the parent which encourages access by the other parent. Courts seemed to largely have ignored these and other encouragements, with little or no change in actual parenting time outcomes.
Often what is labeled "joint custody" in court statistics is de facto sole custody with the "physical custody parent" solely deciding education, medical, access schedules and receiving guideline child support (often plus spousal support) regardless of the time invested by the "non-custodial" parent.
Advocates cite the gender equality provisions of the Charter (sections 15 and 28), the UN Convention on the Rights of the Child, and the social costs of raising children of divorce without parental (largely fathers) involvement, as reasons for such reforms.
Opponents of such reforms cite fears of domestic violence, judicial freedom to decide the meaning of "best interests of the child" and legal reasoning that parents have no rights, only responsibilities.
Parliament studied this issue extensively in a Joint Senate-Commons Committee on Child Custody and Access in 1998, issuing a report "For the Sake of the Child" with 48 recommendations on shared parenting and parallel reforms. None of these recommendations have been implemented.
Opinion polls show widespread dissatisfaction with the cost, outcomes and unfairness of the family court system. In private, many lawyers, judges and politicians express great dissatisfaction with the existing sole-custody, adversarial system...
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