Time for Canada to embrace equal shared parenting.

Subject: Re: [CEPC_Members] Law Times- Speaker’s Corner: Time for Canada to embrace equal shared parenting

Speaker’s Corner: Time for Canada to embrace equal shared parenting

Monday, 05 May 2014 08:00 | Written By Brian Ludmer | |

 

From the 1998 Senate special joint committee recommendations to the present, numerous reports and statements concerning the family law system have recognized the need for fundamental reform as it relates to contested custody cases.

Bill C-560, a private member’s bill proposed by Conservative MP Maurice Vellacott, is a reasonable and balanced proposal to address the current broken system. Parliament will debate bill C-560 on May 7, followed by a second reading vote.

The principal change to the Divorce Act, with the goal of reducing incentives for bitter and expensive litigation over children, is the proposal for a rebuttable presumption that equal shared parenting would support the best interests of the children unless a party can establish that some other parenting plan would substantially enhance those interests.
Section 16(10) of the Divorce Act, as amended in 1985, calls for a consideration of maximum contact with both parents. However, experience with reported decisions to date has shown that the great majority of decisions are still following a primary and secondary parent model with secondary parent time-shares running from 16 per cent (alternate two-day weekends and some mid-week contact for a few hours) to 35 per cent (alternate three-day weekends and one mid-week overnight) after accounting for equal vacation time.
However, social science research overwhelmingly supports the more current understanding that children need, benefit from, and want two primary parent relationships after separation rather than one parent and someone they go to visit. Among the leading experts globally is Prof. Ed Kruk of the University of British Columbia. He recently published a book with a synthesis of the rationale for equal shared parenting and a listing of the leading global peer-reviewed research.

There’s wide acceptance that children deprived of meaningful relationships with one of their parents are at greater psychological risk even when they’re able to maintain relationships with the other parent and that shared time and parenting between two parents works. Shared custody agreements have also been shown to reduce parental conflict and increase co-operation over time.
Bill C-560 recognizes that the current effort to specify with precision a specific time-share between a primary and secondary parent isn’t logically or empirically justified. Custody litigation seeking to marginalize one parent has no discernible benefit when measured against the financial and emotional cost and the impact on the children of litigation.
Public opinion polls over many years have consistently shown up to 80-per-cent support for equal shared parenting across all demographics, regions, and political affiliations. Support among Canadian women is indistinguishable from men, and a global group called Leading Women for Shared Parenting is assisting in efforts in Canada and elsewhere. Perhaps this is because, according to Statistics Canada in 2012, the employment rate for women with children under six years old was 67.8 per cent (up from 31.4 per cent in 1976) and 79 per cent for women with children from six to 15 years old (up from 46.4 per cent in 1976).
Despite the development of both permissive and mandatory mediation, collaborative law organizations, and parent education programs, the family law courts remain overburdened with substantial backlogs due to child-related disputes. This problem, together with the associated costs to taxpayers and parents, has only gotten worse over the years. The cost of litigation has led to significant advantages for wealthier parents and those more able to represent themselves.

The opposition to equal shared parenting frequently comes from divorce industry professionals who might have difficulty reviewing bill C-560 objectively since one of the main goals and likely effects of the Divorce Act amendment is to reduce the current plague of custody litigation. However, many studies identify the very existence of the custody litigation itself as the primary concern regarding the effect of divorce on children.
In response to the active discussion in the media and on behalf of several shared parenting organizations, I prepared a document on the myths and facts about bill C-560 that dispels the rhetoric and confusion put forth in opposition to it.

In addition to the public support and strong social sciences empirical support, there are several key facts to consider:
Bill C-560 will foster settlements and reduce litigation due to the requirement that a parent seeking primary parent status must establish that disproportionate parenting time will substantially enhance the best interests of the children, a principle that remains the focus under bill C-560.
Bill C-560 focuses on the right of the child to know and love two primary parents in accordance with the leading research on the best outcomes for children of divorce and Canada’s commitments under the United Nations Convention on the Rights of the Child.

Mediated, consensual or, if needed, adjudicated custom solutions are still available under bill C-560 where there is demonstrable merit in light of the unique aspects of the particular family. The proposed legislation does not impose a one-size-fits-all solution; it merely provides a starting point for adjudication based on what works for most children and then still allows for an examination of the unique aspects of a family to see if a disproportionate time-share is justifiable.
Decision-making powers can fall to one parent for good reason even though child time-share is equal or close to equal.

Bill C-560 is an urgently needed, balanced response to a significant social problem that is familiar to anyone with exposure to child custody litigation. The public overwhelmingly supports the equal shared parenting solution. Parliament will soon speak on the issue.

---

Brian Ludmer of LudmerLaw is a business and family law practitioner and was among the drafters of bill C-560.

Comments

Ending the feudal family law system is the aim of C-560 in Canada

Scott Brison,

We urge you to vote for family equality on May 27th. Vote for Bill C-560.

Live Free,
Connie Brauer
1061 Mines Rd. RR2
Falmouth, NS B0P 1L0
Phone, 902 791 0958
Email, cbrauer@eastlink.ca

From: ‘Glenn at Cheriton.ca’ glenn@cheriton.ca [CEPC_Members]

Sent: Tuesday, May 20, 2014 6:43 PM

To: CEPC_Members@yahoogroups.com

Cc: EPOC_NEWS@yahoogroups.com

Subject: [CEPC_Members] Contact your MP before May 27th to end the feudal family law system and vote for Bill C-560

Ending the feudal family law system is the aim of C-560

The foundation of British law is the “Magna Carta” which for the first time, effectively restrained the judgment or discretion of the king.

Parents across Canada have organized to reform family law with latest efforts resulting in a bill in Parliament, C560, expected to get a second reading in May, 2014.

In April, 2013, Supreme Court Judge Thomas Cromwell released a report, commissioned by the Chief Justice, which called for a complete overhaul of family courts, bemoaned the failure of 30 years of “reforms” controlled by the legal profession, and slammed family law for inaccessibility, dismal outcomes and creating disrespect for the legal system. The report called for “consensual decisions” by parents.

Bill C560 aims to implement selected best practices from other jurisdictions to encourage parents to make such “consensual decisions”, to reduce conflict and costly legal battles, and also to ensure that both parents have the option of equal time with their children unless proven unfit.

These reforms are long overdue: A joint Senate-Commons report accepted by Parliament recommended shared parenting and equality of parents in 48 reforms in 1998. Every single recommendation was blocked by legal profession vested interests, who make billions of dollars from the current adversarial system.

When legal profession advocate Nicholas Bala says the system needs more “resources” – he means more money. Thus the choice is clear: either taxpayers pour further dollars into the current dysfunctional system, or we implement a selection of practices which have reduced costs to parents and children in other jurisdictions. Those practices make up Bill C560.       

Advocates of the current sole custody system don’t seem to be able to avoid making two claims: that more money to the existing “stakeholders” will fix the system and promoting unfounded prejudicial stereotypes against fathers. The Supreme Court report dismissed the first claim, so let’s examine one of the unfounded stereotypes:

Claims that large number of abusive fathers are gaining custody are belied by research which consistently shows that children are safer with fathers than with sole maternal custody. Social science also shows that joint custody or equal parenting reduces both conflict and abuse outcomes.

It is time to move beyond simplistic gender stereotypes and do what social science overwhelmingly shows is in children’s best interest: keep both parents unless clear proof of unfitness.

To argue over which is more disadvantaged, the “winners” or the “losers” of child custody cases is pointless: let us agree that a child who goes into family courts with two fit parents and ends up with only one is the real loser. Let us agree that legal and other adversarial professionals who exploit that process to line their pockets are the winners, pious claims to the contrary notwithstanding.

Bill C560 is a good initiative to reduce legal incentives to remove a fit parent without substantial evidence. In his book, “Equal Parenting Presumption”, custody expert Edward Kruk shows that at least 40% time sharing (preferably 50%) is the key to making real reforms work and improving outcomes for children and parents. Equal time as the starting point means both parents need not fear arbitrary loss of their kids and in practice most often work out their own parenting plan (which need not be 50/50).

A key point of Bill C560 is to define “best interests of the child” as keeping both parents unless one is proven unfit.

The last reforms parents successfully pushed for (1986) included the “friendly parent rule” which was supposed to presume joint custody by giving preference to the parent who would most encourage parenting by the other parent. Judges generally “read out” this provision of the Divorce Act, inserting the presumption that existence of conflict meant they could exercise judicial discretion and order sole custody. Worse, judges often presume that removing the parent seeking joint custody or equal parenting will stop conflict. It is a feudal system when the decision maker has complete discretion/decision rights without any responsibility for the outcomes. Social science research shows that sole custody generates conflict and disadvantages children, yet judges claim this is in “best interests of the child.” Nothing could be further from the truth.

Parents say that outcomes from the adversarial system have not perceptibly changed over the last several decades. Vested interests oppose changes since they make money from adversarial divorce and sole custody.

Bill C-560 brings long overdue non-adversarial reforms to a broken system. It should be supported by all members of Parliament as such reforms are supported by over 80% of the Canadian public.

Parents and supporters of these reforms should can call their federal MP and ask he or she to vote in favour of C-560. You can call in to radio or contact other media and make the point that your MP ran on the shared parenting policy in the last election and that your vote in the next election depends on how they vote May 27^th for second reading.

Glenn Cheriton, President, Canadian Equal Parenting Council

p.s.  Here are some links to help you support equal parenting reforms:

http://canadianepc.org/donate

http://canadianepc.org/membership/advocate-signup/

__._,_.___

---

Posted by: “Glenn at Cheriton.ca” <Glenn@Cheriton.ca>

---

Forceful governor general tells lawyers, ‘Heal thyself’

Forceful governor general tells lawyers, ‘Heal thyself’.

In stinging rebuke, Johnston says it’s time legal profession regains sight of justice, public good

By RICHARD FOOT, Postmedia News August 15, 2011 9:43 AM

• Story
• Photos ( 1 )

Gov. Gen. David Johnston has singled out Ontario as having the worst court processing times in Canada.

Photograph by: Ashley Fraser, The Ottawa Citizen

HALIFAX – Canada’s lawyers and judges are losing sight of their commitments to justice and the public good, and the profession must reform itself and rebuild the trust of ordinary citizens, says Gov. Gen. David Johnston.

In a rare, forceful speech at the opening of the Canadian Bar Association’s annual meeting in Halifax on Sunday, Johnston issued a stinging assessment of the legal profession and pleaded with it to change.

“We need a new model for professionalism in law,” he said. “To borrow a saying from a sister profession: physician, heal thyself.”

A former dean of law at the University of Western Ontario, Johnston said lawyers such as himself enjoy a “social contract” with society: In return for self-regulation and a monopoly over the practice of law, he said, “We are duty bound” to improve justice and serve the public good.

Instead, he said the profession is failing to uphold its end of the deal.

He said Canadians in all provinces wait too long to have their cases heard in court, and face unacceptable delays once there. He singled out Ontario for the worst court processing times in the country, and said despite efforts to reverse the trend, “the pace (of change) is woefully slow.”

Johnston said judges and lawyers must act with “urgency” to break through what criminologists have called a “court culture” of complacency, if they hope to streamline the process.

Johnston also chastised lawyers — not specifically in Canada but across the democratic world — for contributing to the collapse of trust between citizens and public institutions, and the resulting social instability in many western nations today.

He cited the 2008 financial collapse on Wall Street as one example.

“How many lawyers ‘papered’ the deals that involved fraudulent statements of assets, liabilities, income and valuations?” he said.

“How many lawyers ‘sounded the alarm’ about conflict of interest in the web of financial transactions and creative financial instruments?

“How many lawyers were silent in the face of a pattern of deregulation which has left the economy naked to excessive leverage, and which any thoughtful observer knew was bound to have its inevitable pendulum swing?”

Johnston also rebuked Canada’s law schools for losing touch with practicing lawyers in the real world, and for relying too heavily on narrow criteria, such as the standardized Law School Admissions Test, for selecting new students.

He lamented the lack of work-life balance in law firms that “penalize those with a family,” particularly young mothers — a comment that drew applause from the audience.

And, like Supreme Court Chief Justice Beverley McLachlin on Saturday, Johnston said the profession must make legal services more affordable, and simple, for millions of middle-class Canadians.

“For many today the law is not accessible, save for large corporations and desperate people at the low end of the income scale charged with serious criminal offences. We must engage our most innovative thinking to redefine professionalism and regain our focus on serving the public.

“If we wish to avoid having change forced upon us, we must embrace new ideas.”

It is rare for a Canadian Governor General to make such frank public speeches, but Rod Snow, president of the Canadian Bar Association, said he welcomed Johnston’s honest words.

“He talked about things that he knows,” Snow said. “He probably gauged that this audience wanted to hear something of substance and I think he probably got it right.”

Ontario Bar Association president Lee Akasaki said he was surprised by Johnston’s strong stand, but also agreed with it.

“We have to get the bar back on track, be more relevant to the people we serve and hopefully in doing that we’ll improve the image of lawyers,” he said.

Arianna Huffington, the American social media pioneer and founder of The Huffington Post online website, spoke to the conference after Johnston.

She praised his remarks as a “speech of tremendous depth” and said what Johnston highlighted was essentially a breakdown in trust and a crisis of leadership among political and professional elites in many democracies.

“I completely agree with the Governor General,” she said. “Our leaders refuse to innovate because they are afraid of rocking the boat,” she said. “But if they don’t innovate, change will be forced upon them.”

Postmedia News

© Copyright (c) The Ottawa Citizen

• E-mail this Article
• Print this Article
• Share this Article 

Legal system slammed for failing families

http://www.theglobeandmail.com/news/national/ontario/legal-system-slammed-for-failing-families/article1711216/

Kirk Makin — Justice Reporter

From Friday’s Globe and Mail

239 comments

• Email
• Print/License
• Decrease text size Increase text size

At one of the most stressful periods of their lives, separating couples are driven to the poorhouse by a family law system that fails to deliver workable solutions while their children are often hurt by a system that doesn’t take their opinions into account, a report by the Law Commission of Ontario says.

In one of the most in-depth looks at what ails family law in many years, the report indicts the system for draining parents’ bank accounts, ignoring expert advice in favour of simplistic solutions and leaving children out of the process.

The report, which was based on interviews with roughly 100 social workers, lawyers, judges, counsellors and individuals caught up in the machinery of family law, also proposes a series of solutions, including more money for low-income litigants.

While battling an ex-partner in court can be costly – cases that go to trial can ding the participants for well over $100,000 – the report’s authors said there is substantial concern judges cannot or will not step in to stop overly litigious spouses from wearing down an ex-partner through “legal bullying.”

What’s more, many parents who tried to access legal aid funding ultimately gave up because they felt ignored or rejected by “unfriendly” staff.

Many social workers and mental-health professionals also complained that lawyers and judges often paid little attention to their findings, sticking instead to more simplistic concepts. For example, judges often hold to the idea that equal parenting is always best when in some cases it isn’t, it said.

Some of these professionals were amazed that governments license drivers, but do not take steps to educate people before they blunder into marriage.

Even individuals who want information about their marital obligations are “immensely” nervous and embarrassed about seeking it out, the report said.

“Many people find it ‘suspicious’ that someone would want to get legal information at an early stage of a relationship and would prefer not seeking it for fear of being perceived as not trusting their intimate partner,” it said. “Most people are afraid that these conversations would destroy their relationship.”

The report also found widespread skepticism of mandatory mediation, partly because mediators are poorly regulated and often untrained, and partly because the process that only works when both participants are voluntarily committed to it.

The report found children felt the costly process was draining their parents’ money and that courts had little interest in their opinions.

“Children want to be heard but they feel they have no voice and no power in relation to adults, including their parents, lawyers, counsellors and judges,” it said.

At home, the report said children often feel obligated to “parent” an emotionally needy mother or father at the same time as they nervously watch family finances dwindle away.

Stan Barron, a father who has spent 14 years and over $200,000 fighting with his ex-wife over custody of their children, said money was his overriding problem. Besides the burden of high legal fees, Mr. Barron said litigants must be prepared to match their ex-spouses expert for expert when it comes to mounting a case.

“It has bankrupted me,” said Mr. Barron, whose sons are now 16 and 19.

He also observed that different judges are repeatedly parachuted into long-running cases. “It would be a massive improvement to have one judge follow a case from start to finish,” Mr. Barron said. “I was shocked when I started this process. You have to reinvent the wheel every time.”

The report details a number of solutions to the problems, many of which deal with making it easier for people to afford the high cost of litigation. Among the suggestions included in the report are more flexible payment systems to allow people to pay their fees incrementally and a sliding scale to make legal services more affordable for low-income people.

It also suggests ways to better co-ordinate services for those with family problems, such as police and women’s shelters, suggesting that some services should team up to share space and that case workers should communicate more.

With a report from Adrian Morrow

Lawyers to be kept out of divorce battles

Lawyers will be kept out of thousands of family dispute cases every year in a shake-up of divorce laws.

By Nick Collins
Published: 7:30AM BST 18 Oct 2010

21 Comments

The number of divorce cases rose 16 per cent to 137,000 last year, with the average childcare case taking more than 12 months to be completed Photo: PHOTOLIBRARY

A government review is to recommend the introduction of a compulsory mediation stage before any financial or custodial dispute is heard in court.

The plan, to be published at the start of next year, will also introduce briefer and simpler hearings for cases that cannot be resolved by mediation.

David Norgrove, who is leading the review, described the “tremendous strain” being put on the current system by the rising number of disputes coming before the courts.

The number of divorce cases rose 16 per cent to 137,000 last year, with the average childcare case taking more than 12 months to be completed.

It is hoped that the new mediation stage will reduce legal aid costs by up to £100 million, while fewer expert witnesses would be required to testify before the courts.

Mr Norgrove told The Times the family justice system costs more than £1.6 billion, but that nine in every ten cases could be dealt with out of court.

He said evidence showed that: “If you can get both parties to learn about mediation, the great majority will go on to use it.”

Sir Nicholas Wall, the most senior judge in England and Wales, said the system should be made “less adversarial” as he attacked selfish parents for failing to consider their children’s well being.

Under the new system, couples could be forced to take parenting classes as well as being referred to mediators, with court rooms acting as a last resort.

For more info, click here.