‘No’ to shared parenting presumptions

In his recent article in The Lawyer’s Daily, Gene C. Colman takes the position that the majority of Canadians support creating a rebuttable presumption in favour of shared parenting in family law (“Equal shared parenting has huge support”). 

I beg to differ with both his assertion that this is something most Canadians want and the wisdom of such an approach.

First, it should be noted that the March 2022 Nanos poll to which Colman refers was commissioned by a number of organizations that have lobbied for this presumption for decades. In other words, this poll was not commissioned by a neutral party but, rather, by organizations with a very particular agenda.

Second, this poll surveyed just over 1,000 Canadian adults. Doubtless, a few of them were people who have been through a custody case, which would give them at least a lived experience to support their position, whatever it is. But the opinions of those who responded to this telephone survey who are not parents or who are happily parenting their children with the children’s other parent are not particularly valuable when it comes to shaping public policy.

Not always a pretty picture

That’s because, 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 co-operatively 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 in families — including my own — 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 in families — including my own — 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 (IPV), 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.

We don’t need more than the law already provides, given s. 16(6) of the Divorce Act: “In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.”

Keira’s Law

Families do not need a presumption in favour of equal shared parenting. Outcomes in family court are based on the facts of the individual family before the court. Presumptions interfere with that premise and should be left outside the courtroom (or mediation) door.

What family courts do need are more judges who are better educated and informed about family violence and who can interpret the legislation, including the new definitions of family violence and best interests of the child test factors, to ensure that both adult and child survivors of family violence can move on to lives free from violence or the threat of violence.

To this end, Liberal MP Anju Dhillon recently introduced Bill C-233, on the second anniversary of the death of Keira Kagan while she was in the care of her father, who also died, in an apparent murder/suicide. Keira’s death, which is being investigated by Ontario’s Domestic Violence Death Review Committee, occurred in the midst of a lengthy family court proceeding in which Keira’s mother’s claims of intimate partner violence and concerns about her daughter’s safety in the hands of her father were minimized and largely dismissed by the court as not being relevant to parenting.

Jennifer Kagan has advocated tirelessly for this legislation. She says: “These changes are long overdue. We commend the wonderful MPs who have brought this important bill forward. No other child should suffer the preventable loss of life at the hands of a parent nor be put in a dangerous or abusive situation. I remain gravely concerned about the level of education on domestic violence among judges, many of whom largely rely upon their preconceived notions or stereotypes about abuse.

“Judges must understand what domestic violence looks like in the year 2022, especially in regard to non-physical violence and coercive control. Judges must be brought up to speed with access to the best available education. As the final gatekeeper in the system, it is important that judges have in-depth knowledge on this subject and to instil greater public confidence in their abilities to protect victims and children. Lives like Keira’s depend on it.”

If passed, Bill C-233 would require newly appointed family court judges to receive education about domestic violence and coercive control. It would also ensure that this education be made available for existing judges, something that is presently sorely lacking. Surely, this is what is in the best interests of children: judges who are well informed on the topic of family violence and whose focus on the best interests of the child test reflects that.

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.

This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.