Presumptions have no place in family law

courthouseThose of us who have been advocates and activists on the issue of custody and access in cases involving violence against women always perk up our ears when we hear the name of Senator Anne Cools. Ms Cools was closely affiliated with the efforts of fathers’ rights groups in the late 1990s and early 2000s to derail the federal government’s move to implement guidelines to assist in the determination of child support and to open a discussion in favour of a legal presumption of shared parenting.

A number of public consultations and hearings as well as government and private members’ bills have flowed under the bridge since 1997. Child support guidelines have been in effect for 20 years and, for the most part, work well to ensure that children receive appropriate levels of financial support after their parents separate. Because children live most often primarily with their mothers and because most women continue to earn less money than most men, child support is more often paid by fathers than it is by mothers.

To date, the federal government has resisted the many attempts to introduce a presumption in favour of shared parenting into the Divorce Act, the federal legislation that governs divorce and, for divorcing couples, the corollary issues of custody, access, support and division of property.

The fathers’ rights groups that were so vocal 15 to 20 years ago have become quieter, although they continue to spew hatred of women from their websites and, occasionally, dress as superheroes and stand on top of bridges.

Law reform, once again

While they may have been quiet, the interests of fathers’ rights activists have not been forgotten by Anne Cools, who remains a Senator, and others. In late 2015, she introduced Private Member’s Bill S-202, An Act to Amend the Divorce Act (shared parenting plans), which has the short title of Shared Parenting Act.

When she spoke to her Bill at Second Reading in May 2016, Ms Cools said the following:

“[it is] a common sin to unite the child’s interests with the mother. . . the child needs the love and care of its two parents . . . shared parenting allows the child to have the benefit of the affectionate bonds with both parents. For the best interests of the child, shared parenting must be part of the divorce process.”

She also commented that family and divorce law had been afflicted by “ideological gender warfare,” which is her way of saying that feminists had opinions about these matters.

Shared parenting, once again

If passed, Bill S-202 would introduce what amounts to a presumption in favour of shared parenting. Presumptions are inappropriate in any child-related family law context, where decisions need to be made based on a careful consideration of legal principles, the facts of the situation and informed application of the best interests of the child test. A presumption in favour of shared parenting is downright dangerous for women and children leaving abusive relationships.

Where parents have the ability to place the interests of their children ahead of their own feelings, can communicate and negotiate with one another effectively and can treat one another with respect, shared parenting or joint custody can work well for kids, who know both their parents care about them and are working together – despite being separated – to raise them as well as they can.

None of these factors is present when there has been a history of abuse. Most often, the abusive partner will see shared parenting or joint custody not as something that is in the best interests of his children, but as a means through which he can continue to intimidate, manipulate and control his former partner. Mothers and their children, in such a regime, are exposed to ongoing physical and psychological abuse, potentially for years.

NAWL speaks out

The National Association of Women and the Law (NAWL) has long been a leader in fighting for custody and access legislation that addresses the safety of women and children and that reflects the principles of women’s equality.

I was honoured to make NAWL’s submission on Bill S-202 to the Standing Senate Committee on Legal and Constitutional Affairs on December 13, 2017. You can find the full transcript of our submission on the NAWL website.

There seems to be little appetite for this Bill in the halls of government these days. Let us hope that remains the case and that we see an end to these attempts to entrench rights for parents who have little to no interest in what is truly best for their children.

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