A Family Law Reform Advocate’s Letter to Santa

The following by long-time friend of NPO and staunch advocate for family law reform Paulette MacDonald.

Dear Santa,

My name is Paulette MacDonald and I am a Family Law Reform Advocate in Canada and that came to be once I witnessed firsthand the devastation that occurs in the hands of our Family Law System. – And all I want for Christmas is a presumption of equal parenting at the onset of divorce or separation in the absence of abuse, neglect or violence. Tall order, I know but I’m confident together we can do it.

While I am extremely proud to be Canadian; I’m ashamed of our governments Family Law System, one that is profoundly broken and has been for decades – A System that was put in place to help families when they are most vulnerable going through divorce or separation and instead of helping them, it destroys them with its bias “winner-take-all” approach. According to Ontario’s former Chief Justice Warren Winkler, “family law is in a state of crisis. We see a system in disarray – one that is beyond tinkering and that needs to be rebuilt from the bottom up using new concepts and fresh ideas. In short, we see a need for fundamental change.”

That was in 2011 when Justice Winkler was advocating for; free court based, mandatory mediation for family law litigants and in 2010 we had the release of the Law Commission of Ontario in-depth report on the family law system and the report deplores a system that can bankrupt litigants and routinely ignores the wishes and interests of children.

Sadly our Governments Divorce Industry has grown to the size of the Auto Industry so Santa, you can imagine what we’re up against –

We need your help with the Canadian Standing Committee on Justice and Human Rights who are currently studying Bill C-78. You see Santa, this Bill is proposing changes to the Divorce Act to reflect the Best Interest of the Child and yet it has no mention of equal parenting what so ever.

Regrettably, Bill C-78 is not intended as the much needed and overdue overhaul; instead it’s targeted as more of a legal housekeeping exercise. Still, through the action of the Standing Committee, I believe that Bill C-78 represents the best opportunity in more than 20 years to make select changes in the Divorce Act demonstrably supported by Canadians and backed by authoritative Social Science research.

Equal parenting is in the best interest of the child. Equal parenting should be the starting point for judicial consideration – if both parents are deemed fit while the marriage/relationship is intact, then both parents should be deemed fit when the marriage/relationship ends. Social science informs us that children do much better with both parents. Conversely, children raised without both parents generally underachieve, are prone to more medical and social problems, and have significantly higher rates of incarceration- all at taxpayer expense.

Continuity of parental and family relationships to the maximum workable extent is what is in the best interest of the child. Hence, fit parents should not have to spend their life savings in family court simply to maintain a pre-existing relationship with their children as is all too often the case.

Equal parenting- is fully endorsed by social science research as the preferred child arrangement post dissolution barring issues of abuse, neglect or violence. In fact, 110 eminent researchers publicly endorsed this scientific conclusion in 2014. Moreover, in a 2018 special edition of the prestigious Journal of Divorce and Remarriage, a panel of social science experts went further by stating the scientific body of research was sufficiently powerful to now justify a rebuttable presumption of equal parenting. I submit this evidence- based consensus should be reflected in Bill C-78.

Not only is equal parenting supported by science, it is overwhelmingly supported in many countries and jurisdictions according to polls, as is the case in Canada. In polls commissioned in 2007, 2009 and 2017 Canadians supported a presumption of equal parenting by a ratio of more than 6:1. Notably, this strong support was generally the same regardless of gender, age, geographical region or political affiliation. This is a non-partisan issue for Canadians.

In 1998, all parties endorsed the equal parenting recommendations of the “For the Sake of the Children” Report” by the Special Joint Committee on Child Custody and Access. Likewise, the Liberal government of the day commissioned a poll in 2002 which found Canadians supported equal parenting even then. The Conservative and Green Parties currently have shared parenting as part of their policies. Now is the time for the other parties to reaffirm their commitment to equal parenting as a non-partisan issue.

I’d like to share with you public perception of equal parenting after its adoption in other jurisdictions. A recent example is Kentucky which became the first US state to adopt an explicit rebuttable presumption of equal parenting in April, 2018. Subsequent poll results of July, 2018 indicate favourable support of equal parenting by a ratio of 6:1- about the same as in Canada. The poll also provides valuable insight on children’s rights vs parental rights. As you know, detractors of equal parenting paint it as a parental rights issue on the erroneous assumption that parental and children’s rights are somehow mutually exclusive rather than overlapping. Here’s what the poll reported. Two questions were asked on children’s rights and two on parental rights.

For children’s rights:

a) It is in the best interests of the child to have as much time as possible with their parents following divorce –a ratio of 12:1 agree/disagree;

b) Children have a right to spend equal time or near equal time with both parents following divorce or separation, or not –a ratio of 16:1 agree/disagree;

For parental rights:

a) Both parents, whether living together or living apart, should have equal access to their children and should share responsibility for raising their children-a ratio of 12:1 agree/disagree;

b) Separating parents should have equal parenting rights vs either father or mother should have more-a ratio of 11:1 agree/disagree;

The results strongly indicate that children’s rights and parental rights are not mutually exclusive but complimentary, oftentimes flip sides of the same coin, while recognizing the primacy of the child.

In that respect, the Minister of Justice was badly advised by her staff for her testimony before the Standing Committee on Nov 5th when she framed equal parenting as a parental issue rather than a child’s rights issue. Social Science research and the public at large are telling you that they are indivisible. To treat them as disjoint is not only scientifically incorrect, it is openly disingenuous. Children’s best interests are served by having both parents actively involved while parental rights are satisfied by allowing fit parents to raise their children. Canada has no better public example of the benefits of equal parenting than Prime Minister Justin Trudeau who was raised by Pierre Trudeau and Margaret Sinclair-Trudeau.

I conclude Santa by urging you to tell the Standing Committee to do what’s right, rather then what’s easy – tell them to be a voice for Canadian children and amend Bill C-78 to incorporate presumptive equal parenting reflecting social science consensus and the long standing wish of Canadians of all persuasions.

And please Santa, tell divorcing parents to take their revenge, anger or control issues out on their therapist and not their ex-partner and tell them to love their children, more than they hate their ex.

Thank you Santa and Merry Christmas!

Paulette MacDonald

Leading Women For Shared Parenting

Minden Hills, Ontario

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