The presumption that just won’t go away

There are a few themes in family law that just won’t go away, no matter how often and thoroughly they are debunked and dismissed.

Parental alienation is one, made infamous by psychiatrist Richard Gardner more than 30 years ago. It became popular among abusive men, who used Gardner’s “syndrome” to attack the mothers of their children, claiming that these evil women were poisoning their children’s attitudes towards them. Gardner and his so-called syndrome were debunked more than 20 years ago, but parental alienation has resurfaced in recent years and continues to be a favourite tactic among abusive men during family law proceedings.

Another repeating theme is the notion that the law should impose a rebuttable presumption in favour of equal shared parenting time. This would mean that, when parents could not agree on parenting arrangements for their children, the court would begin by presuming it would be best for the children to spend the same amount of time with each parent. If either parent did not agree with this, that parent would have to produce sufficient evidence to rebut the presumption.

This is very different from the present family law regime, which says the court must consider what is in the best interests of the child when making any parenting decisions. Such an approach starts from a neutral place and considers the facts and circumstances of the family to decide on what arrangements should be put in place.

Men’s rights vs best interests of children

The first time this notion was raised in Canada was in the late 1990s, when the federal government introduced guidelines to assist courts in determining how much child support should be paid by one parent – most often the father – to the other. The legislation included an exemption from the guidelines in cases where children spent roughly equal amounts of time with each parent. Men’s and fathers’ rights organizations – which generally opposed the increased regulation of child support —  quickly rallied behind a call for a presumption in favour of shared parenting. After all, they thought, if their kids spent half their time with each parent, then fathers would not have to pay child support.

Despite many attempts to have the government pass legislation in favour of equal shared parenting, no such legal presumption has made it into the law. In 2018, when significant revisions to the Divorce Act were introduced in Bill C-78, the government made it clear it was not interested in re-opening a discussion about a presumption in favour or shared parenting.

However, just in time for Parental Alienation Awareness Day (April 25th), a Nanos poll claiming that the majority of Canadians favour such an approach has brought shared parenting proponents out of the woodwork once again.

The poll itself has some challenges. It was commissioned by a number of organizations that have lobbied for this presumption for decades, including the Canadian Association for Equality, the Canadian Equal Parenting Council and REAL Women of Canada (yes, they’re still around).

Don’t be misled by the language here. When we start talking about parental alienation awareness day or equal shared parenting, it’s as though we have slipped through Alice’s looking glass, where words mean the opposite of what they say.

The Nanos poll surveyed just over 1,000 randomly selected Canadian adults. Were these people who knew anything, professionally or personally, about family law? About intimate partner abuse? About the complications of shared parenting arrangements? Maybe one or two. As for the rest: just how much weight should be given to their uninformed opinions when it comes to shaping public policy?

Not always a pretty picture

On the surface, shared parenting presents a pretty picture: two parents who, while they no longer wish to remain in a relationship with one another, are committed to cooperatively and constructively co-parenting their children, who skip happily back and forth from one parent’s home to the other every other day or week.

I like that picture as much as the next person. I’ve seen it work where the two parents respect and trust one another, are skilled communicators and are able to set their own feelings aside in favour of what is best for their children. These families don’t need a presumption in favour of equal shared parenting; they are, for the most part, resolving their family law issues themselves or with the assistance of a mediator.

I’ve also seen it not work where the two parents cannot move past the hurt and pain they have caused one another and, as a result, lose track of what is best for their kids. A presumption in favour of equal shared parenting would not be good for these families.

And, I’ve seen what it can look like in families where there is intimate partner violence, especially coercive control. In those cases, equal shared parenting is an invitation to the abuser to continue to exert power and control over his former partner, using the children as one of his tools. Shared parenting time inevitably means the parents must communicate and collaborate on the minutiae of children’s lives. It can mean frequent in-person contact between the parents as children go back and forth from one home to the other. The children can become unwitting spies and messengers for the abuser. In these families, a presumption in favour of equal shared parenting can have, literally, fatal consequences.

Just the facts

Outcomes in family court are based, as they should be, on the facts of the individual family before the court. Presumptions interfere with that premise and should be left outside the courtroom door.

Canada should never adopt a presumption, even a rebuttable one,  in favour of equal shared parenting because it puts women and children who are fleeing family violence at risk of a lifetime of ongoing and escalating abuse.

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