In Canada, Barbara Kay and Prof. Edward Kruk Demolish Arguments Against Shared Parenting Law

March 31, 2014 by Robert Franklin, Esq.

Having reported on the overwhelming support for equal parenting in Canada as demonstrated by surveys conducted in 2001, 2009 and now 2014, and having disposed of the opposition’s weak and quixotic arguments against bill C-560, I turn now to two National Post articles here (National Post, 3/19/14) and here (National Post, 3/25/14) that persuasively argue in favor of a presumption of equal parenting post-divorce.

The first article is by the always excellent Barbara Kay and the second is by Dr. Edward Kruk, professor of Social Work at the University of British Columbia. (Allow me to take this opportunity to tout Prof. Kruk’s latest book, “The Equal Parent Presumption: Social Justice in the Legal Determination of Parenting after Divorce.” It is the best and most comprehensive treatment of the issue of parenting following divorce now in existence. If you want to know the state of social science on the issue, Dr. Kruk provides it to you. He also gives the recent history of parenting laws and the impact of those laws and court practices in child custody cases. His book is a must-read for anyone concerned with divorce, child custody and children’s well-being. I’ll do a full review sometime soon.)

Kay of course is less of a social scientist and therefore pays more attention to the recent history of the shared parenting movement and the resistance to it. As usual, Kay demonstrates her mastery of pertinent information on shared parenting. She scores point after point.

In 1999, an exhaustively researched Joint House-Senate committee report, entitled “For the Sake of the Children,” offered recommendations whose spirit is encapsulated in Bill C-560, which will move to second reading in Parliament on March 25…

The Bill is animated by the basic principle that adults are divorcing each other, not their children. The proposed solution, ESP, consistently garners approval ratings as high as 80% in polls, with little variation by gender, region or political affiliation. Increasingly, social-science literature, including responses from grown children of divorce, favours shared parenting as the model that best reflects the indissolubility of parenthood.

Yes, it’s been 15 years since the Canadian Parliamentary committee definitively came out in favor of shared parenting. That’s 15 years during which nothing has been done toward that goal.

And yes, Canadians support shared parenting.

The present adversarial system for high-conflict cases, whereby one parent (usually the mother) “wins” primary residence for the children, has produced injustice, heartbreak and financial ruin on a massive scale.

Yes, the adversary system of deciding child custody cases is horribly destructive to children and fathers, but also to mothers who end up shouldering 100% of parenting obligations following divorce. That means they’re less able to earn and save, and is a major factor in women’s significantly lower retirement incomes compared to men’s.

That the family-law system is in serious need of fundamental reform is not in dispute, with report after report demanding action.

The Canadian government knows this. Its most respected jurists have said so many times. Parents say the same almost non-stop.

Under the current Divorce Act (1985), judges have paid lip service to vague concepts such as the “best interests” of the child. But many have ignored persuasive evidence showing that the single most important “interest” of children is to continue to love and to be loved by both their parents. Relationships cannot flourish without significant time in each other’s presence.

The abyss separating what judges do and what they believe they’re doing is vast. Put simply, judges intone the mantra of the “best interests of children,” but seldom act to promote those interests. As researcher Paul Millar has pointed out, what Canadian judges do is give sole or primary custody to mothers, but there is no evidence to suggest that practice promotes children’s best interests. Indeed, there’s much persuasive evidence that the opposite is true. Do Canadian judges know the social science on children’s interests and parenting arrangements? There’s certainly no training in the social science offered to them, and their decisions, that day after day repeat the pattern of maternal custody, show clearly that they’re entirely ignorant of the pertinent science.

Prof. Kruk makes much the same point.

The problem with Canada’s current “best interests of the child” approach, as codified in the Divorce Act, is that it relies on a discretionary method of determining children’s interests, in which judges have unfettered latitude in an area of child development and family dynamics in which they have little or no expertise. Thus, their subjective judgments about children’s needs and interests are variable, inconsistent and unpredictable.

Kay then takes on equally shared parenting’s opponents.

Opposition to ESP arises mainly from two sources: family-law lawyers who are by far the greatest financial stakeholders in the adversarial system, and ideologues. The lawyers insist that a vague test is best, leaving the matter for endless litigation; and ideologues either claim outright that mothers are indispensable to children’s happiness, fathers inessential; or accuse fathers of demanding ESP merely to reduce their financial obligations (which, in practice, won’t happen).

Family lawyer John Syrtash, who published an article in the Toronto Sun opposing shared parenting is a good example. He outright said that, even if C-560 were to pass, judges would ignore it, preferring to continue deciding cases by their seat-of-the-pants concept of children’s interests. That he thought that would be a good thing says more about the moral bankruptcy of the family law bar than anything I could even imagine.

Regarding the current primary parent/secondary parent model, [shared parenting proponent Brian] Ludmer asks, “Why do this to children who are used to seeing both of their parents every day?” An excellent question. For while there is ample evidence that being marginalized from a parent harms children, there is no credible evidence that minimal time with a parent is good for them.

Two excellent points. First, the current system deems it appropriate to utterly upset the pre-divorce parenting arrangements for children just because one of the parents filed for divorce. Would someone care to explain why dual parenting is a good thing for children with married parents but a bad one for the same kids when their parents split up? It makes not a particle of sense, but it’s what courts do every day.

Second, as I’ve said many times before, those who oppose children’s right to a father post-divorce need to explain why maintaining the status quo is a good idea. They oppose beneficial change, and that opposition requires them to make the case that what we’re doing works. It’s one of the oddest parts of a very odd debate; shared parenting opponents resist what overwhelming majorities of the public want and the parliamentary committee recommended. They want to keep doing what we’re doing, but they never get around to demonstrating its benefits.

We know why that is, of course. They don’t because they can’t. Face it, it’s hard to go to bat for a system that’s long been described by all and sundry as “broken.” But it’s worth remembering that the status quo is what these people are fighting to maintain. In the case of family lawyers, we know why; it pays too well.

Prof. Kruk is, of course, an academic and writes with the care typical of the breed. So when he traffics in absolutes and near-absolutes, we’d best pay close attention. Remember, Kruk is one of the most knowledgeable people on the planet on this subject.

Judges are forced to focus on parental deficits and projective speculation about who will be the better parent, rather than children’s needs for meaningful relationships with both parents, stability and continuity in their routines and relationships, and being shielded from parental conflict and family violence. The current practice of the judiciary undermines rather than supports parents in the fulfillment of their parenting responsibilities: One parent is simply removed as a primary caregiver of children when parents cannot agree on parenting arrangements.

There is no basis in either law or psychology for choosing between two perfectly adequate parents who are in conflict over parenting arrangements. We support and encourage shared parenting in families where parents are living together, to the point where this has become the typical arrangement in contemporary family life; and there is no reason why such arrangements should not be encouraged and protected when parents live apart…

Yet the importance of children maintaining meaningful and equal relationships with both parents, an arrangement that best shields children from ongoing conflict, cannot be overstated. The devastating effects of father and mother absence in the lives of children is widely documented. There are now over 30 large-scale studies over the past decade that demonstrate significantly better outcomes for children and parents in shared parenting arrangements.

These are trenchant arguments. They are backed by decades of fundamental research. No reliable science contradicts that research. What Kay and Kruk, and countless others, are arguing for is supported by the well-established desires of huge majorities of Canadian society. They are backed by the very concept of social justice. They are backed by the concept of gender equality. Most importantly, they are backed by what’s best for kids who are caught up in the whirlwind of their parents’ divorce.

Against them, opponents offer straw men and misrepresentations that seek to cover the avarice of lawyers and the misandry of ideologues.

Surely Parliament can choose between the two.

National Parents Organization is a Shared Parenting Organization

National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.


#BarbaraKay, #EdwardKruk, #sharedparenting, #equalparenting, #NationalPost, #Canada

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