April 12, 2022 – Shared Parenting The New Normal And Tactical Onus Requires The One Opposing To Rebut; Marginal Note And Maximum Contact
Gene C. Colman Introduction: We continue to highlight Prof. Nicholas Bala’s recent article on Shared Parenting. While Prof. Bala does not support a rebuttable presumption in favour of Equal Shared Parenting as does yours truly, he is a highly respected legal scholar who is super knowledgeable on all matters “family law”. He expertly brings together an analysis of recent cases under the revised federal Divorce Act and the revised provincial legislation. He seems to tentatively suggest that some form of “shared parenting” is the wave of the future. HIs article is most surely worth a read by lawyer and layperson alike. Where you see bolded and italicized text – that’s me. The headings are mine too. The words themselves are Prof. Bala’s unless I indicate otherwise.
EXCERPTS FROM “THE 2021 CANADIAN PARENTING REFORMS: IS SHARED PARENTING THE NEW NORMAL?’
By Prof. N. Bala and Y. Ebsim,
Link: Nicholas Bala and Yakin Ebsim: The 2021 Canadian Parenting Reforms: Is Shared Parenting the New Normal?, Queen’s Law Research Paper Series March 2022, 2022-001
Page 2 – SHARED PARENTING THE NEW NORMAL AND TACTICAL ONUS REQUIRES THE ONE OPPOSING TO REBUT
While judges are still careful to emphasize that there are no presumptions, it does seem that sharing parenting is becoming the “new normal,” especially in cases resolved by mediation or negotiation. Even in the courts, where both parents have had a significant role in child care before separation, there may effectively be a tactical onus on parents seeking some other arrangement to show that shared parenting is not the best interests of the children involved.
Page 12 MARGINAL NOTE AND MAXIMUM CONTACT
In the 1985 DA, the marginal note to s. 16(10) was “Maximum Contact,” and the courts used this to develop the “maximum contact principle,” generally supporting the claims of fathers to significant access or even joint custody of their children. When Bill C-78 was first introduced in Parliament this marginal note was revised as “Maximum Parenting Time”. This created concerns that it might suggest a presumption for equal parenting time. So before the new law came into force, the marginal note was revised to read “Parenting Time Consistent with Best Interests of Child,” to ensure that it is clear there are no presumptions in parenting time.
GCC NOTE: See section 14 of the federal Interpretation Act. Marginal notes are not supposed to count in the official standings!
- Marginal notes and references to former enactments that appear after the end of a section or other division in an enactment form no part of the enactment, but are inserted for convenience of reference only.
Link to Gene C. Colman’s Equal Shared Parenting Web Page
Link to past issues of the ESP Thought of the Day publication