Saskatchewan Conservative MP Maurice Vellacott's indefatigable efforts to introduce shared parenting into Canada's Divorce Act has been an exercise in futility. Its defeat Wednesday was an event that is no surprise to its advocates, who eventually realized that none of Canada's political parties, except for the Green Party, would throw their support behind it. In the end even the Conservative party, whose platform boasts shared parenting, abandoned Mr. Vellacott, in what was his third attempt to reform the present law.
The gist of Bill C-560 was the introduction of certain "presumptions" including a presumption that allocating parenting time "equally" between parents is in the best interests of children -- a claim only rebuttable by evidence that equal parenting would not "substantially enhance" a child's best interests.
Vellacott's proposed law also allowed that current custody and parenting arrangements could be varied, taking into account the new "equal parenting" philosophy by declaring the reformed law a "change in circumstance", a legal requirement under the present Divorce Act to amend an existing custody order or agreement.
Critics of the bill complained that a presumption of equality does away with the tried and true "best interests of the child" test and elevates parental rights over the rights of children. They also resist the notion that parents across Canada may invoke the new law to re-open their custody orders and agreements, potentially leading to a landslide of fresh litigation.
Was the bill so flawed that its failure was inevitable? In my opinion, it was not, but it did contain a "trigger" that unsettled those who still believe shared parenting is merely a ploy of the father's rights movement to reduce or eliminate child support payments.
One of the triggers was the use of the term "equal", which brought back the early days of the Child Support Guidelines, which provided that parents who had custody of their child 40 per cent of the time or more, could bring an application to reduce their child support payments, based on the reasonable proposition that their own costs in caring for their child were increased and thus, their counterpart parent's costs reduced.
Judges became arbiters of whether 40 per cent included school hours; hours when the children slept; and other mathematical conundrums raised by parents seeking to assert or deny the 40 per cent rule. Fear that these arguments would be resurrected cannot be understated, however, lawyers and litigants soon learned that few judges were prepared to accede to child support reduction applications.
But more importantly in the context of shared parenting, a fully involved parent is not necessarily a parent who can or should insist on perfect equality. In fact, in many of the jurisdictions that have implemented shared parenting, lawyers, parents, and legislators have recognized that precise equality is not achievable, typically because parent's and children's schedules are incapable of being sliced in half.
What ought to be paramount is a cultural switch that emphasizes that children need both parents in their lives, and that, in and of itself, is in a child's best interests, despite society's increasingly male-absent procreation and child-rearing agendas. Outdated research that celebrates maternal preferences is no longer valid, but try telling that to Canada's lawmakers.
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