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rebuttable presumption


“We need very clear direction from Parliament to signal to judges and lawyers (and the public) that equal time should be the starting point.”

What should be the rebuttable presumption when it comes to determining post-separation/divorce parental contact with children? Is there a good reason to routinely deprive children of equal contact with a parent after separation and divorce? We (parents, judicial system) spend enormous amounts of financial, physical, and emotional energy on determining whether 0% , 20% or 30% or 40% or even 50% of time is appropriate. Anyone who has had to go through “the system” knows full well that vengeful, fearful, angry, hurt, and otherwise wounded parents will stop at nothing to vindictively keep children from the other parent. And the judges and lawyers and social workers and psychologists and whoever play right along.

In 1986 amendments to the Divorce Act came into effect that were supposed to change the approach to child custody cases. The amendments should have established a “rebuttable presumption” of “maximum contact” [to use the words of the marginal note to subsection 16(10]:

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

Variation orders have a similar provision also titled, “maximum contact” [subsection 17(9)].

In 1986 I was counsel for the father in a case before Justice John Goodearle. The father was seeking joint custody over the mother’s objections but the custody/access assessor (or perhaps better designated as the “facilitator”) had sided with the father. The judge noted that in his view the law had indeed changed with the amendments to the Divorce Act. While some of what the judge wrote in 1986 may be perceived as somewhat archaic through the lenses of the 2000s, the fact that he believed that the law had indeed changed comes through clearly:

61 Subsection (4), and (10) of section 16 may well ordain the dawning of a new era in the sharing of childraising responsibilities by divorcing parents. For it seems that the Parliament of Canada, in proclaiming these sections into law, has acceded to the reality of some rather monumental changes in our modern-day socio-economic fabric. Most notably, the modern-day woman has broadened her range of vocations enormously and as well her appetite for participation in the workforce after childbirth. This is in contrast to the woman of yesteryear who participated in a traditional marriage that recognized her as the nurturer and homemaker and her husband as the breadwinner. Such a sociological change has of course quite obviously made modern-day working women much less available to her historically traditional duties in child raising and, by nature social evolution, fathers have sprung into the breach and now participate more and more in the child’s daily activities and raising which of course includes disciplining and guidance.

This was not a time when equal time sharing was on anyone’s radar. Indeed, the residential time that the father sought in that case was limited according to today’s standards. Still, it was termed as generous by that day’s standards. The judge went to great lengths to examine the social science literature in favour of joint custody. In that case, the father was more concerned with decision making and on account of the judge’s view that the law had changed, the father substantially succeeded.

1988 saw Justice Roger Salhany raise “joint custody” to a legal presumption: The judge ruled that “where a court finds that both parents are equally suitable to be custodial parent, an order for joint custody should follow.” (Lewis v. Lewis) A few months later (in Alfodi v. Bard), Justice Salhany wrote:

It is only where the evidence reveals that one of the parties is not a suitable custodial parent or the circumstances would render a joint custody order unworkable that one party should be appointed sole custodial parent.

Justice Salhany did not appear to use the term “joint custody” to imply equal shared parenting.  Rather, he appeared to have advocated for a “rebuttable presumption” in favour of “joint custody”.  Justice Salhany’s views were not widely adopted.  The current Divorce Act and provincial legislation cannot be interpreted as implying a presumption in favour of joint custody, let alone equal shared parenting. To achieve that result, legislative changes are needed.

The Supreme Court of Canada in Young (1993)saw Justice McLachlin give special mention to the fact that of all possible factors to highlight, only the “maximum contact principle” was specifically mentioned in the Divorce Act. She stated:

“By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable and that the judge should ensure that this contact is maximized.”

Justice Price in Folahan v. Folahan [see Colman analysis of Folahan elsewhere in this blog section – took this analysis one step further when he stated:

“Contact with both parents is the children’s, not the parents’ right. Where, as in this case, a parent argues for unequal contact between the children and each of their parents, the onus is on that parent to rebut the presumption.”

In ordering the father’s access to be further increased, the Ontario Court of Appeal in the 2012 decision of V. (B). v. V. (P.) characterized the following as “minimal access”:

(a) every other weekend from Friday at 3:00 p.m. to Monday at 8:30 a.m., to be extended to Tuesday at 8:30 a.m. on a long weekend not dealt with specifically herein;

(b) every Wednesday from 3:00 p.m. to Thursday at 8:30 a.m.;

(c) commencing in the summer of 2011, three weeks of summer holidays (only two of which can be consecutive) and further, the respondent shall have two weeks of summer holidays uninterrupted by access. The parties shall agree each year by May 31st as to which weeks of holidays they will be taking and failing agreement, the applicant shall have first choice in 2011 and odd-numbered years thereafter, and the respondent shall have first choice in 2012 and even-numbered years thereafter;

(d) irrespective of the access schedule, the children shall always be in the care of the respondent on Mother’s Day and always be in the care of the applicant on Father’s Day;

(e) the parties shall share time at holidays, including Easter, Thanksgiving, Christmas, and March Break as agreed; and

(f) such further and other access as agreed by the parties.

Most judges and lawyers would not characterize an extended weekend that entailed a return to school on Monday morning after the weekend as well as a mid-week overnight coupled with a substantial period during the summer plus other holidays as “minimal”. Yet the Court of Appeal has told us that this sort of regime is indeed “minimal”.

There is a trend, albeit not overly strong, to adopt a “rebuttable presumption” on “maximum contact”. Justice Price in Folahan goes as far to call such a contact a “presumption” and he places the onus on the resisting parent to justify the time restriction.

Yet judges and lawyers have not internalized the “minimal access” characterization of the Court of Appeal and Justice Price’s view has not been adopted across the province, let alone the country. Justice Goodearle was correct that Parliament had recognized the changing social fabric of the nation in 1986 but not many judges followed his example. Justice Salhany thought that statutory amendments had changed the law but few agreed with him.  None of the judicial pronouncements to date have translated into a philosophical transformation towards post separation time sharing. We still tend to see one parent (usually but not always the father) as an occasional visitor in the child’s life.

We need very clear direction from Parliament to create a “rebuttable presumption” of equal time as the default arrangement. The social science research is abundantly clear. Involved parents post-separation equals far better outcomes for kids on multiple axes. The social science research should be driving our legal and social policy. Vague notions of undefined “best interests of the child” should not trump both common sense and scientifically proven outcomes for children of divorce.

Best interests of the child” needs to be determined according to a “rebuttable presumption” of “maximum contact” principle. Fifty percent works well. Let’s make that the starting point, allowing parents to make their own arrangements of course but with still providing clear legislated standards as to from what point the discussion should commence.

In child welfare law we cannot remove children from a parent unless some very serious failures are identified on the part of a parent. (Some may disagree that this is the practice but that has to be the subject of another blog post.) Parents do not have to be perfect parents. Even adequate or less than perfect parents who remain involved in their children’s lives ensure better short-term and long-term outcomes. It is time for legislatures everywhere to take the step. Thankfully, some already have. Now the rest of the world needs to catch up with what Justice Goodearle called “monumental changes in our modern day socio-economic fabric” and demarcate modern child-focused rules and standards, all proven by the social sciences so that children will continue to enjoy the love, affection, and guidance of their parents and extended families on both sides.

GCC Note: I have revised this blog post since I first posted it on April 18.

Note to supporters of equal shared parenting: Go to this page as a first step to show support for Bill C-560, now before Canada’s Parliament – 2nd reading.

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