In a child’s best interest: the battle over equal custody parenting

In early 2014, Maurice Vellacott, a Conservative MP for Saskatoon, introduced a bill to amend Canada’s Divorce Act of 1985. Bill C-560 aimed to implement a presumption of equal shared parenting –where the starting point for negotiations between separated parents was to be as close to equal time shared as possible with their children and to “replace the concept of ‘custody orders’ with that of ‘parenting orders.’”

According to a 2014 Vision Critical survey, over 70 per cent of Canadians support a presumption of equal shared parenting in family law. Experts in the fields of psychology and social science have found that children benefit more from a system of equal shared parenting than of primary and secondary custody. Nevertheless, Bill C-560 was defeated in May at the recommendation of the Canadian Bar Association (CBA).

The CBA claimed the bill only worked in favour of parents and did not seek the best interests of children. They declined to comment for this article.

Dr. Edward Kruk, Associate Professor at the University of British Columbia and author of The Equal Parent Presumption, has over 20 years of experience in social work and is an advocate for equal shared parenting. Kruk is extremely critical of Canada’s current family law system and says it’s highly adversarial, pitting one party against the other. “People are polarized and conflicts are exacerbated,” he says.

“The system uses the rhetoric and discourse of the best interest of the child, but there’s no clear definition of the best interest of the child,” says Kruk. “They don’t see a shared responsibility approach to be in the child’s best interest,” but according to leading psychologists and social scientists Robert Bouserman, William Fabricius and Kruk himself, meaningful contact and meaningful relationships with both parents are definitely in the best interests of children.

Kruk’s colleague, Susan Boyd, chair of feminist legal studies and law professor at the University of British Columbia disagrees and thinks the concept of equal shared parenting is unworkable in many circumstances.

“Logistically, it’s just really hard to make it work for the child,” Boyd says. “You’d have to live closer together, maybe have similar incomes so you can offer the child similar housing… It’s a situation really that would work better for middle to upper middle class families,” she says.

Furthermore, Boyd says that the sexual division of labour in heterosexual households is not even. “Women provide more childcare when relationships are intact than fathers do,” and while things are starting to change, she says, “there is still a disparity and mothers are simply just spending more time caring for children.” So, if the parents come to a decision to separate,“the child should spend more hours per week in the mother’s care.”

Brian Ludmer, a family law attorney and co-author of Bill C-560 thinks that argument only reinforces traditional gender stereotypes, noting the many mothers working more these days and the many fathers staying at home.

“I have a daughter who’s heading toward a career; she’s in graduate school for clinical psychology,” Ludmer says. “Do I have to worry that she’ll be at a disadvantage in the family law world one day?”

Ludmer authored Bill C-560 as a new starting point, he says. “Today’s starting point is, ‘I must find a primary parent and I must find a marginalized parent.’ We’re saying, ‘no, you must start with two equal parents and then find good reason not to keep that.’ That’s it. It’s a paradigm shift. It will end the divorce wars.”

Boyd doesn’t buy it and thinks the shared parenting presumption is dangerous. Taking the perspective of a mother who is the victim of domestic violence, Boyd says, “If we have a law saying that the starting presumption is that both parents have essentially equal rights… that parent is going to have a real upward battle in arguing against that presumption.”

Ludmer says it’s not an “insurmountable hill” and knows domestic violence is a serious allegation and a sad reality for many parents, but sometimes allegations are false and used as retribution to alienate children from the other parent. “Parental alienation cases are founded on lies and distortion,” Ludmer says, “so if you can’t prove it, you’re going to be responsible for a hell of a lot of costs.”

But Parental alienation comes in many forms. Grant Wilson, President of the Canadian Children’s Rights Council, recommends fathers take advantage of whatever time they can with their children whenever they can get it. “It’s about guaranteeing the relationship with the child,” he says and “we tell guys to use the back door.  “You can cut out the parental alienation by doing the end run the lawyers never talk about. The end run is getting into the schools,” he says. “So you take the time to volunteer at the school, read to kids, you’re a lunch time supervisor… It saves them tens of thousands of dollars in legal fees.”

Some parents overreact, Wilson says, mimicking the whispers of a paranoid parent, “‘He shouldn’t be there volunteering, it’s not his parenting time,’ and that’s ridiculous,” he scoffs. “Put that in front of a judge and show them how ridiculous that kind of thing is. And some of these principals get carried away with this crap too,” he continues, referring to a client who volunteered at his child’s school, but was forbid from hugging, touching or acknowledging his child there because it wasn’t his parenting time.

“Unbelievable,” Wilson said. “I phoned up the Director of Education of the Limestone School Board of Kingston and laid into him.”

Apparently, this sort of thing happens all the time. Fathers volunteer at the school, take their child out to lunch or pick them up afterward and some parent calls the cops, claiming the child was abducted. “I even had this happen to me,” Wilson reveals. “I had my kids 50 per cent of the time and this female principal of the school with 155 kids phones the cops after I pick up my daughters from school and says, ‘It wasn’t his parenting time according to the order.’”

Conflict is almost inevitable in divorce and custody battles, but Kruk argues that parental alienation is much more damaging to a child than quarrels of which school their child should go to or what’s an appropriate bed time. “Children who are being alienated from one of their parents are losing a meaningful relationship and a source of support and that really undermines their well being,” he says.

Acknowledging the favourable literature by social scientists and psychologists, Boyd says the benefits of shared parenting diminish if parents have a high conflict relationship. “That can counteract the finding that frequent contact with both parents is always necessarily best for children,” she says.

Kruk admits parental alienation goes both ways between parents, but that there’s more alienation by custodial parents or residential parents because they’re the ones in the power position, and most often times that’s the mother.

To Ludmer, the real pushback of shared parenting is coming from the people who make their money in the industry. “It’s really making your money off that backs of the people suffering from the system,” he says. We need to put this industry out of business and the way we put this industry out of business is by saying, ‘If you’re going to insist on a disproportionate parenting schedule, you’ll need a very compelling case.”

So instead of using this cookie cutter solution, wasting billions of taxpayer’s money and traumatizing the children through custody battles, says Ludmer, “As a society, we need to say to these families, ‘Stop. We’re no longer going to fund your divorce war. If there’s no child protection concern, we’re not paying for it.”