No to shared parenting

There are many reasons – too many to count – not to vote for Pierre Poilievre’s Conservative Party in this spring’s federal election. Many of them can be found in and between the lines of the Conservative Party of Canada’s Policy Declaration.

A friend and colleague alerted me to number 100 (of a total 189) the other day, and I’m glad she did. I hadn’t even glanced at the Conservative Party’s policies because I had no intention of supporting that candidate in my riding on April 28^th. However, it’s good to be reminded from time to time of the need to remain ever vigilant about topics that often don’t make headline news.

Policy 100, buried just over halfway through the Declaration in the Social Policy section, states, in part:

“The Conservative Party believes that in the event of a marital breakdown, the Divorce Act should grant joint custody and/or shared parenting, unless it is clearly demonstrated not to be in the best interests of the child.”

No, no and no again.

What’s shared parenting?

The term “shared parenting” first came into common use in the mid to late 1990s, when the federal government created the Child Support Guidelines. These provided a standardized means for calculating how much money one parent – usually the one who spent less time with the kids – had to provide to the other to assist in the financial support of the children. When children spent roughly equal amounts of time with each parent – shared parenting — the amount of child support was reduced from the standard amount. Usually, it was the father who paid support to the mother, which remains the case today.

So-called fathers’ rights groups called for a presumption in favour of shared parenting, taking the opportunity to also decry women generally who, they claimed, wanted to bleed them dry through unreasonable child support demands while denying them the “right” to spend more time with their kids.

Thanks in large measure to the advocacy work of feminist activists, the government did not succumb to the demands of the fathers’ rights groups, and shared parenting didn’t become a legal presumption.

What’s a legal presumption?

A legal presumption creates a starting point for a court’s decision making. Any deviation from that starting point must be proven by the person seeking it.

In Canadian criminal law, for instance, there is a presumption that anyone charged with a crime is innocent until proven otherwise. This means that the accused does not have to prove they are innocent; the state must prove them to be guilty, beyond a reasonable doubt.

Family laws about arrangements for children after their parents separate do not have a legal presumption that any particular arrangement is preferred. The CPC’s Policy 100 would change this.

What are the best interests of the child?

The Divorce Act (DA) and most provincial/territorial family law statutes, including Ontario’s Children’s Law Reform Act (CLRA) state that the basis for all decisions relating to children is something called the best interests of the child (BIC) test.  The DA and CLRA set out 11 criteria for courts to consider when they apply this test. They include such factors as the child’s need for stability,  the strength of the child’s relationship with each parent and their siblings, the views and preferences of the child, the past history of parenting, the plans of each parent for future parenting and, importantly, the presence of family violence. Family violence itself is given a broad and nuanced definition that includes coercive control, stalking, financial abuse and threats or harm to animals, as well as the more traditionally understood physical violence.

The legislation is very clear:

“s. 16(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.” (emphasis mine)

Generally, and as a first principle:

“s. 16(2) . . . .the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.”

Under the present law, there is no preferred parenting arrangement; each parent provides evidence to show the court why they believe whatever arrangement they want is in the best interests of their child(ren), using the BIC test as a framework.

What about family violence?

In situations of family violence, abusers often want parenting responsibilities – decision-making and time with the children – to be shared more or less equally between the parents. This is driven more by the abuser’s desire to maintain power and control over their former partner than it is by a genuine interest in – or track record of – being involved in their children’s lives.

Understandably, survivors of family violence are reluctant to consider sharing these responsibilities because they know it will mean being subjected to ongoing abuse and manipulation by their former partner, possibly for many years to come, and may mean their children do not get the quality of care they deserve.

Under the present law, the court considers the evidence each parent presents to support the parenting arrangement they want, weighing that evidence against the 11 criteria of the best interests test.

If the Conservative Party were to have its way, courts would start by assuming  that shared parenting is the best option, leaving it to whichever parent did not want that arrangement to prove why it isn’t. This is very different from the present regime.

Given the ongoing lack of judicial understanding about family violence, women fleeing abusive partners would have an uphill battle to obtain parenting orders that would keep both them and their children safe.

Presumptions of shared parenting are not in the best interests of children and can expose both mothers and kids to serious ongoing abuse. The concept was defeated by the federal government in 1998 and at least twice since then. It’s time to lay it to rest permanently.