April 13 Press Release

PRESS RELEASE FROM LAWYERS FOR SHARED PARENTING

LAWYERS SAY CANADIAN BAR ASSOCIATION IS MISTAKEN

TORONTO – April 13, 2014.  Lawyers for Shared Parenting (L4SP) – (a new group of Canadian lawyers who advocate for shared and equal parenting) reject the Canadian Bar Association’s (CBA) opposition to Bill C-560. The CBA Press Release can be found at:  https://www.cba.org/cba/News/2014_Releases/03-24-bill-C560.aspx Bill C-560 would mandate a rebuttable presumption in favour of equal shared parenting for children whose parents are divorcing.  The bill is currently in the midst of 2nd reading in Parliament.

The CBA misinterprets Bill C-560.  The mistaken interpretation of the Bill raises concerns as to whether the vested interests of those who make their living from family law litigation might cloud an objective review of the Bill.

Glenn Cheriton is president of the Canadian Equal Parenting Council (CEPC), a nation-wide organization encompassing numerous groups from across Canada who favour Bill C-560 being passed into law.  He says:

“Lawyers are required to advocate for the interests of their clients and, in family law, this usually means for one parent and against the other.  For the CBA to imply that they are advocating for the best interests of children seems hypocritical or insincere.  Lawyers in an adversarial family law system which incentivizes conflict stand to gain from a family law system so flawed that even many lawyers and judges have asserted that reforms are sorely needed.”

In their press release, the CBA claims that Bill C-560 would “change the primary focus in custody and access matters from what is best for children to equal parental rights.” But this is a mistake: it is the current adversarial system, which allocates parental time and responsibility post-separation, that is uniquely focused on parental rights.  Most custody litigation today is pointless and driven by parents’ self-perceived roles rather than a focus on the best interests of children.  Conversely, by making it more difficult for parents seeking “primary parent” status to litigate, Bill C-560 enhances the best interests of children by protecting their right to two parents and two primary relationships. “Parental rights” are not mentioned in the Bill.

Mountains of the latest social science research tell us that children of separation and divorce experience far better outcomes on multiple axes where both parents are intimately involved in terms of shared parenting time and even shared decision-making (where appropriate).  Bill C-560 clearly prioritizes children’s rights in light of social science research – and not parental rights, as the CBA claims.   In contrast, the Canadian Equal Parenting Council and Leading Women For Shared Parenting (LW4SP) have at their web sites a wealth of studies and data demonstrating the benefits of equal shared parenting.

The CBA erroneously claims that: “The bill is based on the faulty assumption that equal parenting time will work for all families, regardless of abilities, circumstances, needs, history, challenges or attitudes of all those involved”.  There is no “faulty assumption” here.  Bill C-560 is based on substantial research that two primary parental relationships will work for most families, not all.  The Bill’s focus is to reduce litigation which has no upside for children.  Further, the CBA fails to note that the Bill only provides a starting point, or “rebuttable presumption” if parents cannot agree on their own parenting plan (which can divide time and responsibility as the parents wish).  Therefore, in appropriate cases, after due consideration of the children’s needs and their parents’ ability to meet those needs, Bill C-560 allows for unequal division of parenting time and responsibilities.  The focus is solely on proven, not speculative, expected substantial gains for the children of a particular family from disproportionate parenting time.

Bill C-560 incentivizes consensual decisions by parents.  Former Attorney General Nicholson stated in a letter that parental agreements work out better for children than court imposed orders. A blue ribbon committee that included Supreme Court of Canada Justice Cromwell recommended such consensual parental decisions.

In 1985 Parliament passed amendments to the Divorce Act that included the ‘maximum contact’ and ‘friendly parent’ provisions (sections 16(10) and 17(9)).  These provisions should have translated into cooperative non-custodial parents gaining considerably more time with their children to the extent that such expansion of time was consistent with the children’s best interests.  However, experience to-date has shown that those reforms did not achieve Parliament’s intent. Societal expectations have advanced far beyond the current jurisprudence based on the 1985 language.  It is time to moderately limit judicial discretion and tell the courts that they should be giving far greater consideration to equal parenting.  This has nothing to do with parental rights.  Rather, it has everything to do with what scores of studies, and the Canadian public, tell us is clearly best for kids.  Less litigation is best for children, taxpayers and parents.  It is what the Canadian public wants.  The vested interests of those opposed to less litigation should be resisted.

L4SP acknowledge that shared parenting is not for everyone.  However, severely limiting the time that competent parents are allowed to spend with their children is something that a huge majority of Canadians believe has to be changed. These changes are long overdue.  Some lawyers who make their living from our current adversarial system may disagree – but ask those who have been through Canada’s family courts.  Few who have been exposed to it think that the current system acts in the best interests of children and families.  The current system is far too expensive and creates incentives for custody wars, where the children inevitably lose.  It is time for a change.

The CBA claims that legislating a preference for shared parenting would be “contradictory to the stated goals of Canadian family laws as well as Canada’s international obligations   This is patently incorrect. Bill C-560 enhances the best interests of children by limiting litigation to those rare situations that merit the effort.  The UN Convention on the Rights of the Child, (CRC) asserts the right of the child to know and to experience the parenting of both parents.

The CRC places an onus on the State to facilitate that child’s right to a fulsome relationship with both parents.  Bill C-560 helps Canada to meet its obligations under the CRC, that the right of children of divorce is to enjoy a meaningful relationship with both parents.

L4SP calls upon all Canadians and especially all parents to let their Member of Parliament know that they stand for justice for children and that Bill C-560 should pass second reading in the House of Commons (it’s coming up for further consideration on May 7th).  Nationwide public opinion polls consistently show exceptionally strong support for shared parenting.

Two Toronto family law lawyers and founding members of Lawyers for Shared Parenting have joined the debate: Gene C. Colman and Brian Ludmer state:

“Many family law lawyers and others who profit from our current family law system incorrectly claim that Bill C-560 is about fathers’ or parents’ rights to the detriment of children’s rights.  Nothing could be further from the truth.  This Bill represents a serious attempt to improve and reform, in a balanced manner, a dysfunctional system that essentially rewards conflict, intransigence and parental alienation of children’s affections, and which leads to outcomes that marginalize parents. The current system deprives children of family savings that could otherwise go to fund their University education or to helping them get started in life.  The cost to the taxpayers of the overburdened Family Court system and to society from distracted and devastated parents unable to focus on their jobs, is a huge waste.  While the custody battles rage, children are caught in the middle.  Bill C-560 will free children from most of the custody wars”.

Canada’s M.P.’s need to be aware that overwhelming public support ( 70% to 80% in 2009 and 2014 public opinion polls) for equal shared parenting crosses all party lines and demographics.     It is time for Canada’s elected representatives from all parties to hear the voice of the Canadian public, to stand up for the best interests of children and to resist vested interests by voting in favour of Bill C-560 at 2nd reading. Canada’s children deserve no less.

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