“There can be no equality or opportunity if men and women and children
be not shielded in their lives from the consequences of great industrial and social processes
which they cannot alter, control, or singly cope with." - Thomas Woodrow Wilson
What is a Rebuttable Presumption of Equal Shared Parenting?
Every Civil or Criminal Law is supposed to have a default position or a presumption.
A legal presumption is a rule of procedure for judges to follow. All it means is that if
neither side to a dispute produces evidence against the presumption, the judge is obligated
to follow the presumption. The most commonly recognized legal presumption is surely the presumption
of innocence in criminal cases. When a person is accused of criminal activity, he/she is protected
by the presumption of innocence. Therefore, the prosecution is required to produce evidence to overcome
the presumption, i.e. evidence of guilt. If the prosecution comes into court with no evidence,
or insufficient evidence, of guilt, the judge is required by law to enter a judgment of not guilty
and let the accused go free. That's how a presumption works. It effectively places the burden of
proof on the side that opposes the presumption.
Unfortunately in Canada, The Divorce Act does not provide a default position or presumption to the Courts.
If a presumption of shared parenting existed, it would place the burden of proof on whatever party to the
custody proceeding opposed equal shared parenting. Certain things would be slam-dunk winners such
as actual proof of violence, abuse or neglect. Other than actual proven safety concerns, there wouldn’t
be any real reason for a Judge not to order Equal Shared Parenting.
Currently however, due to the intrinsic flaws of the Divorce Act, the Family Courts
in Canada have implemented their own default position. One that unequivocally, IS NOT in
“the best interests of the children.” That position is one that is a cruel form of
Child Abuse, and that is the forceful removal of one of the Child’s Parents from the Child’s life.
As Professor Edward Kruk, Associate Professor of Social Work at the University of British Columbia,
and Canada’s foremost expert on Child Custody has stated, “it is a form of child
abuse to have a fit and loving parent forcefully removed by a court in the absence of any child
protection concerns or issues.”
More often than not it is the Child’s Father who is removed from an active parenting role.
In Canada, Mothers get custody in 86% cases, and more than 40% of children in Canada's divorced
families see their fathers only once a month. For the sake of the Children, this needs to be stopped!!!
For the sake of the Children, Family Law in Canada needs to be reformed!!!
For the sake of the Children, the Rebuttable Presumption of Equal Shared Parenting needs to
be the default position in Canadian Family Law!!!
Equal Shared Parenting
Equal Shared Parenting, which has also been referred to as "collaborative parenting," or
"balanced parenting," is a presumption and standard that, for the sake of the children, needs
to be applied to the Canadian Family Justice System, that would see both Parents, Mom and Dad,
sharing equal parenting time and equal parenting responsibility in the decision making of their
child or children, upon separation or divorce.
Of course, the presumption must be rebuttable. If either parent is unable, or unwilling to take
responsibility for child rearing, or such an arrangement is clearly demonstrated to be contrary to
the needs or safety of the specific child, then Equal Shared Parenting should not be ordered. However,
only real and proven reasons should change the presumption of Equal Shared Parenting. Speculation and
False Allegations should not!
False Allegations in The Canadian Family Justice System:
Currently, in the Canadian Family Justice System, False Allegations of physical or sexual
abuse, as well as allegations of neglect, are the “weapon of choice,” by lawyers, and parents,
who want to “win” at any cost. Such False Allegations are running rampant in our Courts, and even
when proven False, there is no liability or repercussion to the Parent who made such a damaging allegation.
Make no mistake about it, False Allegations, especially when submitted by a Lawyer
through sworn written or oral testimony, in the form of an affidavit, is Perjury. Perjury
is supposed to be against the law, and should be punished as a crime. However, our Family Courts allow
such detrimental lies to be told all of the time, more often than not by the Mother, without
any repercussions or criminal charges being laid.
In the 1998 report of the Special Joint Committee on Child Custody and Access, an entire section
was dedicated on the issue of False Allegations of Abuse or Neglect. In Chapter 5, section F, of
the For The Sake Of The Children Report, it states,
“Witnesses, including individuals, lawyers and other professionals, identified
several ways that false allegations can be introduced into the legal system when parents are in conflict
over their children. Allegations of abuse or neglect are often made to a child protection agency, or
they are introduced through affidavits and pleadings submitted by the lawyer of the parent making the
allegation. False allegations can also take the form of perjury in sworn written and
The For The Sake Of The Children Report states clearly that at many of the Committee’s meetings,
“Individual fathers relating their personal experiences and men's groups from
across Canada testified that a tactic used by some parents and their lawyers, in an effort to deny
parenting time to the non-residential parent (usually the father), is false allegations of
physical or sexual abuse or neglect. These witnesses testified that this is a major problem that
not only leads to denial of parenting time but also contributes to estrangement and alienation between
fathers and their children. In some cases this estrangement becomes permanent.
Estrangement may be avoided by maintaining contact between parent and child
through supervised parenting.”
One Father, a Mr. Kim Cummins, (Meeting #20, Calgary) stated,
“At the last appeal, the judge apologized to me, saying `This poor father.
What have we done to him?' What did they do? What did this justice system do to me? I haven't seen
my children for now going on nine years... these false allegations do a lot of things to you. The hurt's
there. It's like someone ripping your heart out. It will never go away, as some people have told you. You
can make as many recommendations as you want, but the scars are here. They're with me until the day I die.
My kids? I have to ask friends what they look like.”
Does this sound like Justice to you???
Why is the Rebuttable Presumption of Equal Shared Parenting Important?
The Rebuttable Presumption of Equal Shared Parenting is important because it protects Children,
by providing Children with what should be every child’s basic rights, and those rights are:
1) The Right of the Child to know and be cared for by both of his or her parents
(UN Convention on the Rights of the Child, Article 7);
2) The Right of the Child to preserve his or her family relations as recognized
by law without unlawful interference (UN Convention on the Rights of the Child, Article 8);
3) The Right of the Child not to be separated from his or her parents
against their will (UN Convention on the Rights of the Child, Article 9);
4) The Right of the Child to maintain personal relations and direct contact
with both parents on a regular basis (UN Convention on the Rights of the Child, Article 9);
5) The Right of the Child, who is capable of forming his or her own views, to
express those views freely in all matters affecting the child (UN Convention on the Rights of the Child, Article 12);
6) The Right of the Child to be heard in any judicial and administrative proceedings
affecting the child, either directly, or through a representative or an appropriate body
(UN Convention on the Rights of the Child, Article 12);
7) The Right of the Child not to be subjected to arbitrary or unlawful
interference with his or her family or home (UN Convention on the Rights of the Child, Article 16);
8) The Right of the Child to be raised by both parents, who both have common
responsibilities for the upbringing and development of the child (UN Convention on the Rights of the Child, Article 18);
9) The Right of the Child to have the Government abolish the traditional
practice of the “Tender Years” doctrine, as well as the traditional practice of awarding Sole
Custody to one parent, which has been shown to be prejudicial to the best interests of
children (UN Convention on the Rights of the Child, Article 24);
10) The Right of the Child to have the government assist the child’s parents
in providing the child with a standard of living adequate for the child's physical, mental, spiritual,
moral and social development (UN Convention on the Rights of the Child, Article 27);
11) The right of the child to be protected from economic exploitation
(UN Convention on the Rights of the Child, Article 32);
12) The Right of the Child not to be subjected to cruel, inhuman or
degrading treatment or punishment (UN Convention on the Rights of the Child, Article 37);
Equal Shared Parenting Protects Children From the Gender Bias in Family Law
In Canada, women file 80% of divorces involving child custody orders. The greatest single factor
that encourages women to do so is the Gender Bias in our Family Court System. Women know with a virtual
certainty that they'll get the children in a divorce; along with the home, child support and maybe even
spousal support. Lawyers know this, so instead of encouraging women to mediate and work out a Shared
Parenting Arrangement in the best interests of the children, they will encourage their client to go
to Court and fight for everything. And why not, by doing so, the Lawyer makes big money, and the wife
gets to be vindictive and possibly destroy her ex-husband. The presumption of Equal Shared Parenting
protects children from the gender bias of this abusive system and protects them from the wrath of
Do Children Of Divorce Have Any Rights In Canada?
Frank Simons, Canadian Author of Courts From Hell; Family Injustice In Canada, is quoted as
saying, “If Rosa Parks was a divorced Father in Canada, she’d still be riding at the back
of the bus.” (http://en.wikipedia.org/wiki/Rosa_Parks )
I agree completely with Mr. Simon’s statement, however, I would like to go even further
and state that, “If Rosa Parks was a Child of Divorce in Canada,
she’d still be in slavery, nothing more than a piece of property to a Slave Master.”
Make no mistake about it; this issue is a Human Rights Issue. There is only one group of
individuals in Canada that is specifically targeted by special laws in which they can be
legally abducted and ripped away from loving parents and Family members, who are then commanded
to pay ransom (child support). That group is the Children of Divorce.
Furthermore, there is only one group in Canada that is specifically targeted by special
laws that make it legal to seize their assets, freeze their bank accounts, and place them
in jail without them having ever committed a crime. That group is the non-custodial parent,
who more often than not is the Father of the abducted child. This group has no rights in Canada
Inherently, in the current Canadian Family Justice System, Children have no real rights whatsoever,
because they undoubtedly have no power at all to enforce any "rights" on their own. A child requires
a champion to work the system. That Champion is the Rebuttable Presumption of Equal Shared Parenting.
Relationship breakdowns, separations and divorces, are acrimonious affairs. But far more
acrimonious are relationships that are forcibly broken down by someone outside of the relationship.
When a separation or divorce enters the Courtroom, which is as simple as one parent applying
to the Courts for Full Custody of the Child (the Applicant); regardless of whether the other parent
wants to work out an Equal Shared Parenting plan for the best interests of
their child (The Respondent); all concern about a child’s best interests,
or a Child’s rights, gets thrown out, as the Child’s rights and best interests clashes
with the Applicant Parents' larger agenda and, too often, the powerless children suffer the consequences.
Equal Shared Parenting Defuses The Adversarial Nature of the Courts:
The Canadian Family Justice System has a way of turning loving, caring, compassionate
parents into hard-nosed, bitter, stick-it-to-the SOB crusaders, who lose track of how
their attitudes and decisions are affecting their innocent children.
As Canadian Family Court Judge, Justice Brownstone stated in a video interview with CBC’s
Susan Ormiston, "My position is that the Family Court is the last place that parents in
conflict should be going to, to convert themselves from ex-partners, to co-parents.
That is what they need to do, and it doesn't happen in a courtroom, because a courtroom sets
parents up to wage war..., not peace..., and for the sake of their children, their children need
their parents to be at peace."
In speaking about how adversarial the Canadian Family Justice System is, Justice Brownstone
stated, "Everyday in Court Rooms, throughout the world I suppose, parents who are
in conflict with each other over their children are waging the battle of their lives...
and the sad part about it is that, from where I sit, very, very little of the battle has
anything to do with the children. These are struggles for power and control, they often do
not focus on the children at all."
To watch Justice Brownstone’s video interview with CBC’s Susan Ormiston, please click
on the following title:
Susan Ormiston talks with Family Court Judge Harvey Brownstone
Justice Brownstone has spent 14 years refereeing ugly custody disputes in Canadian Family Court
, and has written a book entitled, Tug of War: A Judge's Verdict on Separation, Custody Battles,
and the Bitter Realities of Family Court.
Finally, a Judge who tells most of the story. He states correctly that the Family Justice System
is extremely adversarial in nature, which is contrary to children's needs, as it sets parents
up to go to war with one another. What he fails to mention is the exorbitant cost,
or how the system feeds on itself.
Justice Brownstone fails to mention how lawyers and Judges unethically escalate
the conflict. He fails to be honest about the gender bias in the Canadian Family Justice
System. He also fails to be honest about the fact that despite the conflict, a Judge could
still act in a child's best interests, and order an equal shared parenting arrangement,
in which the parents would be Court Ordered to communicate with one another by means of
a mediator, or parenting co-ordinator.
The Rebuttable Presumption of Equal Shared Parenting would help protect Children from
the adversarial nature of the Courts, by directing Family Court Judges, like Justice Brownstone
himself, to start acting in the best interests of the child by ordering an Equal Shared
Parenting Arrangement. By doing so, the system would now work to help reduce the conflict,
tension and stress, rather than inflaming the conflict and tension, which, in reality, is
what the current "winner take all" system does.
When a child's relationship with one of their parents is permanently severed, with neither
the child nor the affected parent desiring it, the Canadian Family Justice System sets the Family
up for failure. Such inappropriate Court actions only increase the animosity between divorcing
couples, and place the child in an unfortunate situation in which they are caught
in the middle of the conflict.
The child him/herself becomes the battleground. Each parent begrudges the child’s
relationship to the other. Even though a parent may hold their tongue,
the attitude still exudes for the child to see. The child lives with their distain. The child
is caught between a rock and a hard place. To survive they learn to mask their feelings.
To avoid the disapproval of their parents they align with each parent through negative comments
about the other. So when with Mom, the child tells bad stories about Dad to gain their mother’s
approval and minimize tensions with her. Then, when they are with Dad, the child tells bad stories
about Mom to gain Dad’s approval and minimize tensions with him. Sadly though, this strategy only
feeds the conflict between the parents as they feel more justified in their position with the
new ammunition delivered by the child. Thus the parental conflict escalates and the child
is subject to greater hostility.
Equal Shared Parenting Helps To Reduce Conflict
For the Sake of the Children, the Rebuttable Presumption of Equal Shared Parenting would help
reduce the conflict, as it levels the playing field between both parents, and ensures that
neither parent needs to feel threatened about losing their relationship with their child.
Equal Shared Parenting provides both parents, and the child, with the security of a continuing
relationship with one another.
Research is abundantly clear that the level and intensity of Parental Conflict is the most
influential factor in a Child’s post divorce adjustment. High conflict between parents is the
single best predictor of a poor outcome for the child.
Common sense tells you that parental conflict deeply affects children, but it is even worse
when the parents feel hatred towards one another. The adversarial nature of the Canadian Family
Justice System is a perfect vehicle for generating outright hate amongst a divorcing couple.
It does so by increasing the conflict and tension with an atmosphere built around fear of loss
instead of hope and promise.
When parents sense that they may lose their child forever, because the child, being so young,
will not have the capability of recovering the relationship on his or her own, they react to this
threat with anger, hostility, and sometimes an irrational sense of impending doom.
Sometimes they flip out and do outrageous, and illegal things ... like the mother in Barrie who
was embroiled in a bitter custody battle, who drowned her 2 children, Serena and Sophia
(age 1 and 3), in 2006.
Frances Elaine Campione, who selfishly wanted to win sole custody of the children, so that
she could return to her native New Brunswick and start a new life, murdered both children,
because her ex-husband, Leonardo Campione, appeared to have been on the verge of more regular visits
with his children, after more than a year of barely seeing his two daughters.
The Campione Family Tradgedy should haunt every politician, judicial officer, Family and Children
Services worker, counsellor and family involved in a separation. The murders of these 2 precious little
angels should make our Members of Parliament hang their heads in shame.
If our Government would have done the right thing back in 1991, and implemented the United Nations
Convention on the Rights of the Child into our National Law, including our Family Law, the Campione
Children might still be alive today.
If our Government would have done the right thing back in 1998, and amended the Divorce Act
to put into practice the recommendations of the For The Sake Of The Children report, little Serena
and Sophia might still be alive today.
If our Government would have done the right thing back in 2002, and passed the Honourable
Jay Hill’s, Equal Shared Parenting Private Members Bill, Bill C-245, two beautiful
little angels might still be alive today.
If our Government refuses once again to reform the Family Justice System in Canada,
and put into practice the Rebuttable Presumption of Equal Shared Parenting, it is just a matter
of time before a similar tragedy occurs.
To read an article from Canada.com on
The Campione Family Tragedy
, please click on the title.
Equal Shared Parenting Protects Children’s Relationships With Both Parents:
Gandhi once wrote, “An eye for an eye will only make the whole world blind.”
Those words apply more than ever to the current Canadian Family Justice System.
Equal Shared Parenting helps to resolve Parental Conflict as it provides something
that the current adversarial Family Justice System fails to do, and that is personal security
in parent child relationships, and sets the system up to provide a favourable outcome for the child
by creating a system that works with both parents, and implements an approach centered around mediation,
education and counselling.
An Equal Shared Parenting approach within the Family Justice System would help educate
parents to understand that an antagonistic tug of war approach is a toxic approach that only hurts
their child. It would create an atmosphere in which the approach is to achieve a plan for both parents
that encourages a relaxation of the animosity by encouraging a new collaborative approach in which the
child’s best interests are being put forth.
Equal Shared Parenting Protects Parents Rights, Responsibilities and Wealth:
Every year in Canada tens of thousands of Parents and Family Members lose their children,
their homes, their life savings, their jobs, their future income, and their dignity fighting
to win control of the children in court. The assets that a family has worked hard to save prior to
divorce end up being spent on mediators, assessors, social workers, real estate agents and the lawyers.
In the end, the children end up with little, if any of the family assets, nor do many children end up
having any money put away for their future education.
Some families, who lose everything, find themselves living on welfare and end up becoming a burden
to society. Working taxpayers wind up paying for the additional costs created by the adversarial Canadian
Family Justice System.
In many cases in our Canadian Family Courts, the strategy deployed by one parent is to deliberately
prevent the children from seeing the other parent, and to force the other parent into financial hardship
by using different court tactics to stall and delay. The more times that they have to go to Court,
the more money they have to spend. Most times, the parent that can’t afford to keep going
back to Court ends up giving up.
Often, a primary-care parent will use their advantage as the primary parent to alienate the children
from the other parent, in an effort to destroy the relationship between the children and
the other parent. The loving relationship that a child once had with two parents is
destroyed by one parent seeking revenge on the other parent without any thought of what is in
the best interests of the child. Damaging as well is that often the custodial parent does not
even allow the children to see the grandparents of the non-custodial parent for no other reason
except that they are relatives of the spouse they dislike. This is called Parental Alienation Syndrome,
and it is an immense problem in Canada. It is a cruel form of Child Abuse and the Canadian Family
Justice System is encouraging it.
The Presumption of Equal Shared Parenting helps protect BOTH parents’ relationships
with their children, as it promotes true gender equality between sexes in the parenting
of their children, and recognizes BOTH parents as significant contributors to a child's development.
Equal Shared Parenting also protects BOTH parents’ wealth, as it significantly reduces conflicts
in court, as one parent does not feel like they are being treated as a visitor with
their own children, or a wallet to their former partner. Fights to get control over the
children in order to get support payments are one of the largest single factors in court custody
The incentive to litigate is also greatly reduced, as both parents know that the courts
will award equal parenting. Similar to no fault insurance, the outcome is predictable.
As a result, families will suffer less financial hardship, and money can then be placed into
Registered Education Savings Plans so that the Children’s future education can be secured.
When both parents know that they have a reasonable share in the life of their children,
there is little motivation to fight. The best way to make peace is to have a fair agreement.
Equal Shared Parenting will also greatly reduce the problem of Parental Alienation and
child access problems. Furthermore, Equal Shared Parenting will significantly reduce the abuse
of the legal system through the use of false allegations against the other party.
Equal Shared Parenting Protects You The Canadian Tax Payer:
Since the introduction of the so-called “No Fault Divorce,” the divorce industry has
evidenced unprecedented growth, and has become a multi-billion dollar business in Canada.
After it’s introduction the divorce rate has steadily climbed from 8% to being among the world’s
highest at about 50% of marriages. Each year there are approximately 75,000 divorces and
50,000 child custody orders. Of these approximately 90% of the time custody is awarded to mothers.
There are approximately 2 million children in Canada who are now living life without their Father due
to the adversarial Family Court System.
So, what is the financial cost of the adversarial Family Justice System to Canadian Taxpayers
and Families? Here is a breakdown of the annual costs just for the operations of the Family
Justice System only. You the Canadian Taxpayers are paying for this:
Cost of Judges Salary – $300,000,000 (Three Hundred Million)
Cost of Administration, Operations, $400,000,000 (Four Hundred Million)
Cost of Court Security - $100,000,000 (One Hundred Million)
Cost of Legal Aid - $200,000,000 (Two Hundred Million)
Cost of Enforcement - $120,000,000 (1 Hundred and Twenty Million)
Cost of Lawyers - $4,600,000,000 (4 Billion, Six Hundred Million)
These numbers are estimated, based on the Ontario numbers provided by the Ontario
Provincial Auditor, as details for all of Canada were not available. With one third of the total
population of Canada residing in Ontario, the totals for Canada were prorated accordingly.
In those cases where input numbers included Civil and Criminal justice, the proportion to Family
Justice was approximated. These costs do not include the many other associated costs such as
mediators, social workers, police, children’s aid societies, etc. They are just the costs related
to the Family Court portion.
References: Attorney General, Ontario Court Services Annual Report 2005, Ontario Provincial
Auditor – Annual Report 2003, Federal Funding of Provincial Child Support enforcement,
Department of Justice – Report on Plans and Priorities 2004-2005, Canadian Judicial Council,
Profile of legal aid services in family law maters in Canada, CanLaw.
The Total Yearly Cost to Canadian Taxpayers and Families in Crises is approximately $6 Billion
per year. Remember though, that is only the administrational costs.
For this huge expenditure, there is absolutely no value or benefit to our Canadian families,
or Canadian Society as a whole. In fact, our Family Justice System only brings about harm and
damage to our Families, and our Society. The only people benefiting from the court created family
conflict are the Judges (Former Lawyers) and Family Law Lawyers, as well as the Assessors, who charge
up to twenty thousand dollars to do an assessment.
What is the financial cost of the adversarial Family Justice System to Canadian society as a
whole? When you add up the costs incurred by society for items such as; courts; legal
subsidization; additional costs to healthcare; additional costs to education systems and other
social institutions; the increase in crime, including juvenile delinquency; policing; welfare
costs for those single parent families that fall into poverty; E.I.; support and enforcement
agencies such as FRO; the impact on workplace productivity and placement, as well as loss of
productivity on the part of affected adults; personal bankruptcies; crime; and the future costs related
to be responsible for such a situation; the costs to Canadian society and Canadian Taxpayers is
astronomical. Some estimates have been given as high as 10 to 12 Billion Dollars annually.
Although buried in our social fabric, these are real costs that impact the country’s bottom
line, and from a global business perspective, they impact our competitiveness. For our society
as a whole, the dissolution of marriage is a costly proposition.
Couldn’t this money be put to better use?
Can you imagine the benefit to society as a whole if these funds were used for healing families, or for dealing with poverty?
Couldn’t this money be used to speed up the wait times in our National Health Care system?
Wouldn’t this money be better spent on Education programs?
France has free University for its Citizens, to the extent that there is no tuition charged
by public universities. Students are only responsible for their own housing, food and other expenses.
Couldn’t the billions being wasted on our failing Family Justice System be used to put a similar
Public University Program into service here in Canada? Wouldn’t such a Public Service be more beneficial
to Canadian society???
Shouldn’t the Billions wasted be redirected for programs to:
- Prevent family crises.
- Help families on the edge recover.
- Equitably address all issues of domestic violence regardless of gender.
- Support families to help them survive divorce and help enable “New Beginnings”.
- Focus efforts on legitimate cases of need and enforcement only
where there is a dereliction of responsibilities.
- Initiate programs to help eliminate the poverty caused by the impacts of divorce.
As we, the Canadian Taxpayers support divorce, as well as the added cost to society
of single parent homes, shouldn’t we be the most powerful lobbying group the Government should
pay attention to? Unfortunately for the Children of Divorce, the Canadian Bar Association is
the most powerful lobbyist group in Canada when it comes to the Family Justice System, and they
don’t want things to change at all.
Who Does Equal Shared Parenting Hurt?
Why does the Canadian Government regard negotiation as the best means to resolve government
conflict, police standoffs, land claims, union and management disputes, etc, etc,
yet appears to view the adversarial, courtroom approach as the best way to deal with family
disputes? Why??? Because it is big business, that’s why.
Make no mistake about it; The Canadian Bar Association is one of the most powerful lobbyist
groups in Canada, and they like the Family Justice System exactly the way it is, because
the primary losers in the change from the adversarial system, to a system based on equality,
are the lawyers and judges themselves.
Divorce represents a limitless capacity to the legal profession to generate income, and they don’t
want to lose it. You would think that the Canadian Family Court System’s sole purpose would
be to focus on the needs and best interest of the family, but in reality, it encourages conflict
with the sole purpose of generating profits for it’s own best interests. The Canadian Family
Justice System is an extremely self-serving industry.
The groups that will most adversely be affected by Equal Shared Parenting are lawyers, judges,
assessors, and other elements of the legal system. To read what Lawyers are saying about the
Presumption of Equal Shared Parenting, please click on the
February 03, 2006 article from
The Lawyers Weekly, by Cristin Schmitz.
You will see that they don’t want things to change, but when you look at their arguments as to
why they don’t want things to change, you will see the transparency in their statements. For a
lawyer like Toronto family law practitioner Carole Curtis to say,
“The current situation of custody and access, although not perfect, is working,”
shows just how out of touch Lawyers are with the failings of the system. Mrs. Curtis goes on to say,
“I would rather have no change, than a move towards shared parenting or
joint custody or parenting plans, or whatever other euphemism somebody wants to use, because the
current situation, for the majority of separated families, reflects the arrangements that existed before
separation, and the arrangements still are that the mother is usually the primary caregiver and often
that translates into sole custody, and that the father is an access parent paying support.”
Is Mrs. Curtis really that clueless? Does Mrs. Curtis really believe that we, the Canadian
Public are that clueless?
The majority of Canadian Families today, and for the longest time now, see both parents working outside
of the home and both parents sharing child-rearing duties inside of the home. Socio-economic conditions
in Canada and North America have contributed to the need of dual incomes for families. Truthfully,
most Canadian Families could not survive today if there was only one income in the home.
The Ontario Women’s Directorate, a social program that provides a vehicle for government action on issues
of concern to women, states on their website under the heading “Economic Independence”,
“The increased participation of women in the paid workforce has been one of
the most significant social trends in Canada in the past 25 years. In 2004: 58% of all women aged 15 and
over were part of the paid work force, up from 42% in 1976.” So, if in 1976, over 30 years ago
42% of all women in Canada, aged 15 and over were part of the paid work force, and today, 58% of women
in Canada are part of the paid work force, are we really expected to believe that mothers today,
in 2009, are stay at home Moms in charge of all of the care giving for the children, as well
as the cooking and the cleaning?
The Ontario Women’s Directorate also states that economically,
“the number of two parent families below the poverty line would increase
to an estimated 78% if they were to become single income families.” Socially, it was the norm
in the past, for women to stay at home having a more expressive role in the family; taking care of the
children and providing emotional support for the family, but it is no longer like that. We are living in
the year 2009. We are no longer living in the 50’s and 60’s. Yet, the Lawyers making big bucks off of the
Canadian Family Justice System would expect you to believe that we are.
People, especially Family Law Lawyers, who oppose the Presumption of Equal Shared Parenting need to
fill us in on why it is okay, given all we know about the value of Fathers to children, to separate the
two. We know from mountains of social science accumulated by a vast array of researchers in countless
different ways, in many different cultures, that children with actively involved Fathers
do better than those without. We know that children, mothers, fathers and society greatly benefit
from father involvement with children. They must provide us with well-documented research and
statistics on why the current system is working, to show us why it should not be changed. They
must provide us with well-documented research and statistics on how the current system is
benefiting our children, our families, and our Canadian society.
As all of the research points to the contrary, the Lawyers feeding off of the Adversarial Canadian
Family Justice System, cannot provide us with an intelligent well-documented argument. Instead,
they can only make unintelligent and self-serving statements such as the one made by past
chairperson of the Canadian Bar Association’s national family law section, Judith Huddart,
of Toronto’s Dranoff & Huddart. Mrs Huddart has unintelligently stated,
“I don’t think we are in favour of the shared parenting presumption
scenario. It has a lot more to do with power struggles between parents. What we want is parents to
find a way to communicate positively about their children.” Mrs. Huddart’s statement makes
no sense whatsoever. It is a transparent statement that is only meant to serve Lawyers Best Interests.
It is almost as if Lawyers don’t even see Children any more. All they see is dollar
signs with pigtails and baseball caps. Haven’t they made enough money off of our Children’s pain?
Make no mistake about it, Equal Shared Parenting Only Hurts The Lawyers.
A Lawyer Speaks The Truth About The Canadian Family Justice System
I leave you with a straightforward and truthful article written by an honest Lawyer named
Michael Cochrane, entitled
The Flaw In Family Law,
that was published on May 4, 2009,
in The Mark: News and Perspectives Daily.
Michael Cochrane is a Partner at the Toronto Law Firm Ricketts, Harris LLP. Mr. Cochrane
has been practicing law in Ontario for over 30 years in both the public and private sector.
His practice has an emphasis on civil litigation, family law, estates and public policy law.
He was the host of BNN’s “Strictly Legal” for three successful seasons and has appeared as a legal
expert on numerous television and radio programmes including: the CBC’s “Counterspin,"
“As it Happens," TVO and Canada AM.
He is the author of a number of books on legal issues, including the best selling Surviving
Your Divorce: A Guide to Canadian Family Law (4th Edition) and Strictly Legal: Things You
Absolutely Need to Know About Canadian Law. He was the Co-Editor of the Annual Review of Civil
Litigation (published by Carswell) from 2001-2004. He is also the Legal Expert for Zoomer Magazine.
In addition to being trained in negotiation and advanced negotiation, Harvard Law School,
he was a Fellow at the National Association of Attorneys General in Washington, D.C. He has
lectured at a variety of law schools in Canada, including the University of Ottawa, Osgoode Hall
(York University) and Ryerson University.
May 4, 2009
The Mark: News and Perspectives Daily
The Flaw In Family Law
You would be hard-pressed to find a knowledgeable Canadian who could defend our current family
law system against reasonable standards. Is it efficient? Cost-effective? Good for families?
Good for men? Women? Children? The answer is no on every score. Day in and day out, our
justice system drains the spirit, energy, and life savings out of tens of thousands of Canadians
who are going through separation and divorce. Factor in the millions of dollars transferred from Canadians’
savings to lawyers’ accounts and the cost to taxpayers of the entire industry surrounding divorce
in Canada – Legal Aid, police, judges, court staff, disrupted schools, doctors, and social workers
– and we have nothing short of a billion-dollar drag on the Canadian economy. If the system is
indefensible, which it is, can we just start over again? Or should we let millions of Canadians continue
to suffer through the nation’s divorce grinder?
We need a wholesale reform of family dispute resolution, and we can start by taking it out of the courts
altogether. No one can recall or really cares how we began to think that family relationships could be
untangled in the same way as car accidents, commercial disputes, and negligence claims. Some families need
financial planning advice at the time of separation more than they need an opinion from the Supreme Court
of Canada. Some need direct and immediate access to police because there are safety concerns, others advice
on getting one of the spouses retrained and back into the workforce as quickly as possible. And almost all
families need some form of counseling to help them transition from one dysfunctional household to two healthy,
functioning homes. Our current court system handles these sensitive needs with the blunt instrument of
adversarial court orders. We need, instead, the equivalent of a labour relations tribunal – a Family
Relations Tribunal, if you will, where resources are devoted to the multi-disciplinary needs of families.
I would rather see separating couples approach a tribunal asking for help in exiting their relationship
peacefully, in a way that ensures the family’s resources are shared fairly. That same tribunal should
help the family divide responsibility for the children, financially and otherwise, in a way that reflects
part of the reality of that family’s pre-separation existence. It is a painful mystery to think how some
mothers and fathers are forced to transition from seeing their children every single day to seeing them every
second weekend for a few hours. How can we expect families and children to thrive after separation if they
move into an artificial parenting universe totally unlike that to which they were accustomed?
It is difficult to keep the focus on the children involved in these kinds of disputes. We have a justice
system (and, dare I say, a political system) that is focused very much on the rights of mothers, the rights
of fathers, the rights of men, the rights of women, and the rights of grandparents. There has been very,
very little emphasis on the rights and needs of children. Mothers and fathers exhaust their emotions and
resources paying lawyers (if they can afford one) to fight over custody and access, but the children emerging
from these high-conflict divorces will exhaust taxpayers’ resources when they end up with eating and mood
disorders, depressed, drugged, smoking, drinking, taking up time in our classrooms, sitting in doctors’ and
social workers’ offices and Children’s Aid Societies, and – as is the case for many children of divorce
– moving into our young offenders’ justice system. Parents fight over their children because our family
law system facilitates that fight. We need to stop letting that happen.
Let’s tear down Canada’s family law system and start over. Disagree? Debate me – anywhere,
anytime. The current system must go.
- Michael Cochrane
I’d love to see Carole Curtis and Judith Huddart intelligently debate Michael Cochrane.
A Final Statement from the “Parliament of Canada’s” own report “For the Sake of the Children.” (1998)
“The prevention of divorce and the resolution of family disputes before
divorce should be high on the agenda. The societal ill caused by divorce of which child poverty
is a priority, requires radical change in both priority and method in which the government dictates
the approach to divorce”