Report to Canadian Chief Justice on Family Court Reform: No Change in Custody, Parenting Time

March 28th, 2013 by Robert Franklin, Esq.

Canada’s Globe and Mail has obtained an as-yet-unpublished copy of a report by a special committee to the country’s Chief Justice of the Supreme Court calling for a radical overhaul of the family law system.  Read about it here (Globe and Mail, 3/27/13).

    An unreleased report commissioned by the country’s top judge is urging a radical overhaul of Canada’s family law system.

    The report to Chief Justice Beverley McLachlin, scheduled for release next month, calls for restructuring the family law system from the ground up, with a focus on streamlining the court process and ending a fixation on combat.

    The report, from a committee headed by Supreme Court Justice Thomas Cromwell, goes on to make more than two dozen recommendations, including the creation of specialized judges who can shepherd a family law dispute from beginning to end.

    The family law system has been under attack for much of the past two or three decades over litigation that drags out and the destructive effect of the adversarial process on couples who are vulnerable and prone to go on the attack. And the inordinate costs of litigation have led to a massive increase in the number of litigants who represent themselves – now as much as 70 or 80 per cent.

    A copy of the report, obtained by The Globe and Mail, says that estranged spouses and their children are seriously damaged by the adversarial system; and that judges, lawyers and law schools must embrace a culture of mediation and settlement.

Now, as I said, the report has yet to be published, so we can’t know everything it recommends, but did you notice anything missing in the G and M’s write up of it?  That’s right, not a word about equal parenting, not a peep about children losing their fathers because of divorce, not a whimper about denial of visitation.

No, the report is all about speeding up the process, and making it cheaper and less adversarial.  Those of course are worthy goals.  The process does take too long and is needlessly expensive and confrontational, so efforts to improve those shortcomings are welcome.  But, truth to tell, this is just more of the same.  We’ve heard this before almost verbatim from the Chief Justice of Ontario’s courts, Warren Winkler.  I’ve written about his pronouncements before here.  From the linked-to article, it’s apparent that nothing’s changed.

The simple fact is that, if these recommendations are implemented, cases may proceed quicker and parents may spend less in the process, but that doesn’t address the main problem with the system of child custody in Canada – its marginalization of fathers.  There, as in so much of the rest of the world, divorce means children lose their fathers, to the detriment of all.  What sense does it make to enact a sweeping overhaul of the custody system and ignore its most important problem?  Maybe the Court wants Canadians to be impressed with its activist stance on the problem and hopes they won’t notice its glaring deficiencies.

Whatever the case, it’s worth remembering that fifteen ago, Parliament received a report by one of its special committees urging equal parenting in custody cases.  It did nothing.  Every year, MP Maurice Vellacott introduces a bill that would establish equal parenting as the presumption in all custody cases.  It’s never been voted on.  In the past, surveys of Canadians showed large majorities (between 65% and 75%) favoring equal parenting post-divorce.  Children do too.  In a study done by Fabricius, 70% of the children of divorce said they favored equal access to their parents and 93% of those in 50/50 said that arrangement was best for them.

And then of course there’s the massive weight of evidence proving that equal parenting is better for kids on essentially all measures of child well-being than is sole or primary care.  It improves kids’ outcomes, reduces parental conflict, improves Dad’s state of mind and frees Mom of a lot of the childcare, enabling her to work more and save more for her retirement.  What’s not to like?

Well, as I’ve said before, family lawyers can’t abide the prospect of lowered conflict between parents.  Lowered conflict inevitably means lowered attorneys’ fees, so the lawyers invariably oppose equal parenting.

Feminist groups routinely oppose equal parenting despite the fact that large amounts of social science plus common sense show it’s good for mothers.  The same feminists who for decades have urged women into the workplace oppose the very thing that would make it easier for them to get there – equal parenting. When feminist groups take a stand on an equal parenting bill, it’s invariably in opposition.  So Canada’s National Association for Women and the Law put out a position paper that predictably made up facts on the subject of equal parenting.  For them, fathers’ ardent desire for a relationship with their children is just a cynical dodge to avoid paying child support.  That professor Edward Kruk points out that there is literally no evidence for that proposition deterred NAWL not a bit.

In what must surely count as the most hypocritical stance ever taken by anyone on anything, NAWL actually opposed equal parenting on the grounds of gender equality.  Yes, you read that right.  The NAWL paper tried to convince its readers that, in some way, 90% + custody for mothers constitutes gender inequality against those mothers.  Never once did the organization indicate the slightest awareness that it is fathers who, day in and day out, are disadvantaged by family courts in their allocation of parenting time.  That that’s what bills for equal parenting are all about seemed to escape their notice entirely.

The simple fact is that opponents of equal parenting don’t have any arguments to make, but they apparently have power.  For fifteen years they’ve stymied the will of the Canadian people and thwarted the welfare of children with their refusal to countenance fairness in family courts.  For their part, elected officials are too cowardly to do the right thing for children and their parents.

Now we’ve come to this – a massive overhaul of family courts without a word about shared parenting.  The justices want to make custody cases less adversarial, but they ignore the very thing that would make that likely – a presumption of equal parenting.  Amazing.

I know what Chief Justice Beverley McLachlin would say.  She’d say that the Supreme Court isn’t a lawmaking body.  It can rearrange the processes by which child custody is decided, but it cant’ change the law.  Just so.  But what needs changing is the behavior of judges who every day in every way convince themselves that children don’t need their fathers.  That’s something McLachlin, et al can change if they wish.  After all, there’s not a word in Canada’s Divorce Act requiring judges to give custody to mothers.  Indeed, they have great latitude about their allocation of parenting time, and it seems to always come out the same – Mom gets custody, Dad gets visitation four days a month.

If the justices really want to make an impact on custody cases, they’d establish required educational courses for all family court judges in which they’d be taught the social science about what promotes child well-being.  That would be easy and all but cost-free.  But of course they have no intention of doing so.

No, they think requiring mediation will settle things down.  But a mediator can’t do anything a judge won’t do.  So if Mom goes into mediation knowing to a virtual certainty she’ll get primary or sole custody, why would she agree to less just because a mediator asks her to?

Finally, the report’s emphasis on reducing the adversarial nature of the process sounds good, but is it?  From here, this is how I read that message: “Courts will continue to ignore the legitimate claims of fathers to their children and children to their fathers to the detriment of all.  We want the process to be more amicable, so if anyone kicks up a fuss, he/she will be punished by the court.  In other words, fathers who complain about being shoved out of their children’s lives will be punished by the court.”  Or, stated another way, “Dads, take your four days a month and like it.”

Thanks to Terry and Ned for the heads up.

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