Barbara Kay: Real family-law reform must start with shared parenting
National Post - Wednesday October 16th, 2013
No one in government can use ignorance as an excuse for tolerating Canada’s dysfunctional legal system: Several recent reports have laid the problem bare.
Last April, the federal government released a special-committee report, “Meaningful Change for Family Justice: Beyond Wise Words,” which stated: “Canadians do not have adequate access to family justice.” In August, the Canadian Bar Association released its 50-page “Envisioning Equal Justice” report, describing access to justice as “abysmal.”
Now we have a new report, “Access to Justice: a Roadmap for Change,” the outcome of a project initiated in 2008 by Chief Justice Beverley McLachlin. The roadmap envisages better dispute-resolution options, more legal-aid funding, plus triage toward appropriate services and other tools for efficiency to help deliver speedier, more tailored service.
We know that family law accounts for 35% of all civil cases; that four of 10 Ontario family law disputes remain unresolved after three years; and that about 50% of family-law litigants represent themselves in court. And yet the Family Justice Working Group’s Report admits, “We lack an empirical understanding of what happens to family cases after they enter the justice system …. how many cases settle, when or why they settle, or after what cost and on what basis they resolve.”
None of the reports examine the most measurable outputs of Canadian family courts: child support, custody and access orders.
The numbers show that the system is unfair to men. Women are primary or equal breadwinners in many families, and about one in three fathers is a primary caregiver. And yet, among the cases surveyed by Statistics Canada in its report “Interjurisdictional cases of spousal and child support, 2010-11,” 96% of support payors were men. Moreover, according to a 2011 Department of Justice publication, “Sharing Custody — When Parents Separate: Further Findings from the National Longitudinal Survey of Children and Youth,” only 5.2% of sole custody is granted to fathers.
No province or territory has a department dedicated to ensuring that non-custodial parents (mostly men) have proper access to their children
The bias manifests itself in other ways, too. Government agencies in 13 Canadian provinces and territories dedicate themselves to collecting child support (often with draconian enforcement mechanisms). But no province or territory has a department dedicated to ensuring that non-custodial parents (mostly men) have proper access to their children.
Given this, I don’t believe reform can be accomplished merely by tinkering at the edges, or grafting new services and procedures onto a bad family court system.
Mediation — which all the reports recommend more of — only works where there is no advantage in an adversarial approach to either side. But since women know that their chances in family court are good, many have an interest in escalating the case to full-blown litigation.
The solution is a default presumption of equal shared parenting (rebuttable where there is demonstrable abuse). This was the recommendation put forward 15 years ago by the Special Joint Committee of the Senate and the House of Commons on Child Custody and Access, whose exhaustively researched report promptly was routed to a political oubliette where, shamefully, it still languishes.
The only losers would be lawyers
Children typically want to continue loving both their parents, which requires equal or near-equal physical time with both. Numerous credible studies conclude that this fairest of paradigms meets the best interests of the child, while being equitable to both parents. Influential ideologues may prefer mother-friendly courts, but polls show overwhelming, gender-neutral public support for an equal-parenting default. The only losers would be lawyers.
A default of shared parenting would diminish false allegations of abuse, an all too common strategy for gaining sole custody; and it would ensure the child’s continuing positive engagement with grandparents and other extended family members, who so often are tragically denied access to children they love by custody “winners.”
Divorce itself changed to “no-fault” decades ago. By what logic do post-separation parenting rights yet remain fault-based? All these fancy reports are treating the branches of a sick family-court tree, when the blight is in the tree’s petrified roots.