‘Equal shared parenting’ law doesn’t put kids first
NationalPost.com – Full Comment
March 20, 2014. Tasha Kheiriddin
On March 25, Bill C-560 goes to second reading before the House of Commons. The private member’s bill, moved by Conservative MP Maurice Vellacott, would amend the Divorce Act and related statutes to make equal shared parenting (ESP) the law in Canada. In Wednesday’s paper, my fellow columnist Barbara Kay wrote a spirited defence of the legislation, primarily because she says it is in the interests of children. While the bill is well-intentioned, and with the greatest respect for Ms. Kay, I must disagree.
ESP does not put kids first. According to a report by the Australian government on its shared parenting laws, legal professionals found that ESP led to a prioritization of parents’ rights over those of their children. In the words of one Australian lawyer, “I often get a lot of twisting of reading the Act. So, ‘It’s my child’s rights to spend 50–50 with me’. … [W]hat the parents want, gets twisted into children’s rights, which is not what the Act is actually saying.”
Here in Canada, Bill C-560 would create a legal presumption that “allocating parenting time equally between the spouses is in the best interests of a child.” This could be “rebutted if it is established that the best interests of the child would be substantially enhanced by allocating [time] other than equally.” Ms. Kay writes that this creates a “steep but not insurmountable hill” for those desiring “primary parent” status.
But why should a parent have to climb that hill, if he or she already is the primary parent in terms of hands-on care? The other parent may work more hours, not because he or she loves the children any less, but based on financial need, personal preference or parenting ability. To assume that this division of labour will, and should, suddenly be equally shared after divorce is absurd. The parent who has been at the office until 8 p.m. cannot suddenly be there for a 3:30 p.m. pick-up. The parent who does not enjoy caring for a toddler will not suddenly become Mary Poppins. And it is the kids who would suffer as a result.
Instead of saying, as Bill C-560 does, that “every child has the right to know and be cared for by both parents,” why not add the words “to the best of their ability”? As they do now, courts should evaluate each case on the individual facts, instead of starting from a false presumption that parents can and should parent “equally.”
Bill C-560 also fails the interests of children when it comes to age. Shared custody arrangements can cause young children to fail to form stable attachments to both primary and secondary caregivers. A University of Virginia study published last year in the Journal of Marriage and Family found that 43% of babies with weekly overnight visits to the other parent were insecurely attached to their mothers, compared to 16% with less frequent overnights. In the words of research advisor Robert Emery, “I would like infants and toddlers to be securely attached to two parents, but I am more worried about them being securely attached to zero parents.”
Instead of assuming ESP is best at all ages, why not endorse — as the Virginia study and many others do — a graduated approach? Get to 50-50 parenting over time. Currently, many parents will demand ESP because once a pattern of care is established, courts are reluctant to change it. Courts should instead be directed to order progression and review at regular intervals, to respect kids’ developmental needs.
Why not require recipients to file expense reports on a regular basis? This would reassure the payor that payments are actually going to support the kids
Then there’s money. The paradox for separating parents is that the less time they have with their kids, the more support they usually pay. ESP can mean less, or even no, support payments. Regrettably, even if parents don’t want or can’t handle 50-50 time with their children, they may seek it for financial reasons — or to ensure that they, not the other parent, controls the money spent on their children.
For this, there is also a solution: Make the support recipient financially accountable. While parents must file a budget during the separation or divorce process, there is no post-split follow-up. Why not require recipients to file expense reports on a regular basis? This would reassure the payor that payments are actually going to support the kids.
In short, ESP throws the baby out with the bathwater, while neither serving the best interests of children nor resolving key sticking points in separation and divorce. Here’s hoping that our MPs recognize this, and either amend or reject Bill C-560.
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