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PART 2 - CHILD CUSTODY REFORM - BILL C-78 FEDERAL GOVERNMENT DIVORCE REFORM

In Part 1, I applauded the positive measures in this new government initiative - Bill C-78.  Unfortunately, there are a number of serious defecits in this proposed reform of child custody legislation. I believe that there are tenable solutions available to signficantly improve Bill C-78.

In view of the sea change in societal norms and family structures in the intervening 33 years since the current Divorce Act was passed, our "broken" child custody legal system requires fundamental structural changes.  While I do praise the government for its good-faith housekeeping changes, if we really want to make lives better for children, then reform of a more fundamental nature is called for.

The Family Rights Movement plans to advocate for a number of amendments to Bill C-78, the first two of which relate to "a more fundamental" restructuring, while other proposed revisions would simply be sundry improvements:

  • Canada needs a rebuttable presumption of  equal shared parenting.  This principle should be the starting point for "best interests of the child" deliberations.
  • Adopt continuity of family relationships as the definitional basis for the "best interests of the child" standard.
  • Amend proposed relocation clauses to place the onus on relocating parent for changes in parenting responsibilities and arrangements.
  • Include arbitration as an explicit component of dispute resolution options.
  • Include provision for a  "Parental Coordinator" to mediate and, if necessary, to break deadlock situations in day-to-day implementation of the Parenting Order.

    The proposed Bill C-78 seems to on paper support some admirable measures but does not fund them even in part.  Therefore, the Movement will also advocate for federal government funding to make the family justice system more efficient and less adversarial:

    • Accelerated Unified Family Court implementation (even though we have heard some encouraging announcements of imminent expansion in Ontario);
    • Funding support for alternative and non-adversarial dispute resolution (eg. We need an expansion of such programs as "393 Mediate" at the Superior Court of Justice in Toronto where free and low cost mediation is provided often on a same day basis.);
    • Support for Provincial Child Support Recalculation Services (the provinces should not have to assume all costs of the good federal initiative);
    • Increased Legal Aid Funding (wider access to justice in the family system is essential);
    • Research funding for Canadian version of "Family Responsibility Centres" successfully pioneered by Australia (it is crucial to evaluate what you are doing so that you can revise good programs and cancel ineffective programs).

    Advocates intend to meet with Members of Parliament to advocate for legislative change that incorporates accepted social science research findings and the consistently expressed views of the Canadian public.  A rebuttable presumption in favour of Equal Shared Parenting is the appropriate course of action in light of the research and the consistent polling data over many years (ie. about 80% in favour).  Vested interests will surely oppose.  Write to your Member of Parliament and express your views.

    2 Comments

    To avoid deepening family conflict that is actually forced by the processes of the court and its support industries, my main law interest is changing laws so that the government has no power to interfere in family arrangements for fit parents. Even among equal parenting advocates, that idea is not on most people's horizons, so I clearly have work to do.

    My hope is that family separation can ordinarily be achieved with equal parenting and virtually no participation by legal professionals. If such a scheme were to succeed, it would still leave a small percentage of cases where a parent reasonably appears to be unfit (a high bar). Cases with one or more parents found unfit might require the apparatus of an adversary family court system that would still need a law favoring equal parenting in the actual best interests of children. In the best possible outcome, that should leave a bureaucracy only 1% to 5% of its present size. Law professionals are likely to resist this change.

    There certainly is an important role for helper professionals in the process of transition from separating parents to a working equal parenting family system. Society currently "helps" separating families with a very expensive court system designed around a ritual conflict that insults and threatens both parents. That system also impoverishes families and causes stress-related mental illness that is pervasive and diminishes the lifetime earning potential of most divorcing families, including both parents and children. If we look at the financial effects on workers from decimating the family court system, we shall probably find that many lower-paid people (social workers, for example) will have credentials suitable to transition to the new jobs. The demand for clerical workers might diminish. Many family therapists are currently paid through publicly-run insurance, and their numbers might increase due to public support for equal parenting families in transition and using mediation over the life of the family.

    A fulsome transition to equal parenting will affect the business of family lawyers, but it is not clear how much. Complete trials are already rare, and an outsider like me can't guess how my rough idea of changes might affect the demand for work like mediation and collaborative law that many lawyers already promote. Some lawyers will surely be needed for designing changes to the law, but that is a narrow specialty. Equal parenting should change the tone of the work, since most cases would no longer hold so much terror for clients.

    Somehow, I dropped 2 words:

    "There certainly is an important role for helper professionals in the process of transition from separating [children and] parents to a working equal parenting family system."

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