Canadian Bill Ignores Shared Parenting; Family Lawyers ‘Love It’

May 25, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

At a time when about half the states of the United States are coming to grips with the need for shared parenting, Canada lags woefully behind. Nothing quite demonstrates that like this article (CBC, 5/23/18).

In many ways, this CBC article has a lot in common with the one I wrote about yesterday. That is to say, it’s intellectually bankrupt, journalistically unbalanced and eager to promote concepts that are just plain wrong. Its writer, one Brandie Weikle, knows little of her topic.

The reason for the article is a proposed amendment to the Divorce Act that would make several changes to existing law. Needless to say, none of the changes even nod in the direction of shared parenting.

The proposed changes fall into six main areas:

1) ​Replace terms such as “custody” and “access” with words like “parenting orders” and “parenting time,” to make the language less adversarial. 

2) Set out criteria that help define the best interests of the child.

3) Compel lawyers and paralegals to encourage clients to use family-dispute resolution services such as mediation instead of courts.

4) Give courts measures to address family violence.

5) Establish guidelines for when one parent wants to relocate with a child.

6) Make it easier for people to collect support payments.

In other words, it does a lot that means little and nothing that would mean a lot. I’m sure changing terminology is a legal landmark matched only by Magna Carta, but truly, this is the best the Liberal Party can come up with? States here in the U.S. set out criteria that “help define the best interests of the child” some 20 years ago with essentially no improvement to kids’ ability to maintain meaningful relationships with their fathers. And do Canadian courts now truly have no “measures to address family violence?” Please.

Certainly the surest indicator that this is a bill of no importance is the family law bar’s enthusiastic embrace of it.

Lawrence Pinsky, partner in the Winnipeg firm Taylor McCaffrey and chair of the Canadian Bar Association’s family law section, said the proposed changes represent a significant step forward.

Pinsky penned a letter to Wilson-Raybould in late December 2017 that outlined the concerns of the CBA’s family lawyers.

“They’re either addressed or there was a solid attempt made to address them,” said Pinsky. “It may be that if I had the pen and was writing the legislation, I might have done it slightly different in certain respects. But they did address many of the changes we called for and we’re pleased with … those changes overall.”

Another family lawyer and mediator, Hilary Linton (yes, Hilary Linton) makes the matter even clearer.

 I love it because it’s written in plain English, and it’s really — as mediators — codifying what we’ve been doing all along.”

It’s always amusing to hear one lawyer saying that legislation constitutes a great leap forward and another saying it’s “what we’ve been doing all along.” Linton and Pinsky might want to chat before being interviewed again.

Still another family lawyer, Jeff Rechtshaffen, is actually wrong about his own practice of law.

“Because people don’t choose to go to court jointly. One party takes the other to court. When you’re served with court papers, you’re already in an adversarial situation and it’s not of your choosing.” 

Hmm. No, actually people jointly decide to divorce every day. My guess is that that’s far more common than one spouse being surprised by a divorce filing. The overwhelming majority of people who divorce don’t use lawyers and they do so for two overarching reasons – they can’t afford the fees and they don’t need the conflict that comes with involving them in one’s private affairs. Rechtshaffen is trying to obscure the fact that lawyers exacerbate conflict between their clients, but I doubt that many people are buying what he’s trying to sell.

Finally, Pinsky delivers the line that I suppose family lawyers have implanted in their brains when they passed the bar exam.

But ​Pinsky, of the Canadian Bar Association, said establishing that presumption is not appropriate in a system that centres on the needs of the child.

“We in the CBA say that you start in the position of the individual child, because there’s not a one-size-fits-all. Different children have different temperaments, and some can handle situations that other children can’t.

Of course Pinsky carefully avoids mentioning that shared parenting is, in the great majority of cases, all but synonymous with children’s best interests. Massive amounts of social science demonstrate the fact, but, as ever, family lawyers can’t be bothered with science.

And the claim that shared parenting is a “one-size-fits-all” arrangement, but the present system isn’t, is so much nonsense. Shared parenting bills in the U.S. invariably have numerous “outs” for unfitness, family violence, the desires of a teenaged child, significant geographical distances between parental homes, etc. And of course parents are invariably able to craft their own plans. Meanwhile, a close look at what actually takes place in family courts today reveals that they are indeed a one-size-fits-all arrangement. After all, how much variety is there in “Mom gets primary custody and Dad sees the kids every other weekend plus two hours in the evening one day per week?”

How balanced is Weikle’s piece? Not very. It’s about 80 lines long, of which six are devoted to pro-shared parenting advocates. And of course that’s not enough space in which to detail the countless reasons why the status quo so ill serves children and parents alike or why shared parenting would be such an improvement for everyone.

But hey, it’s the CBC. That’s the whole point.

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