Jan. 17, 2019-Myths v. Facts #1
1. Myth: The current system is actually working to advance the best interest of the children.
I. The current system is built to foster litigation for those couples unable to successfully restructure on their own. The current system, even supplemented with a long list of criteria for Courts to consider, provides too broad a range of discretion for actual results in Court. As a result, the actual results in Court are dependant upon and influenced by, many factors that do not advance the best interest of the children. These include:
a) The personal background, assumptions, biases and life experience of the particular Judge;
b) Whether one or both parties are self-represented, in which case the proper data presented in a legally admissible and persuasive manner are not available to the Trial Judge. The importance of this factor is underscored by the fact that at least 50% of Family Law litigants are self-represented and self-represented litigants fare quite poorly in Court generally, but particularly when the other side of the case is represented;
c) Relatedly, a wealthy or well-funded (friends and family support) litigant will have an inherent advantage and the parent with less financial resources may have to fold and accept a marginalized role in the children’s lives because of the prohibitive cost of Trials.
d) The thoroughness (and related cost) of presentation of the case, including whether the client in question is represented and whether they have the budget for multiple witnesses and a lengthy Trial and up-to-date research on Court decisions involving maximum contact and equal shared parenting – this produces inconsistent results in the jurisprudence itself;
e) Undue reliance in Court decisions on contested assertions of relative parenting time prior to separation and on artificial status quos created post-separation;
f) Whether the narrative before the Court has been influenced by false allegations and whether the defendant is represented or is otherwise able to demonstrate the falsity of the allegation;
g) Whether a particular litigant’s extended family lives in another province or country and therefore is less able to provide supportive collateral information;
h) Whether a party wishing to introduce the latest social science research has the funds to afford this expert evidence or expert evidence to refute a parental alienation dynamic;
i) Most litigants do not have the financial capacity to endure a one-to-two-week (or longer) Trial. Their cases are decided at Motions based solely on affidavit evidence or on abbreviated proceedings of a couple of days. In all such cases, the full detailed family history and the full understanding of children’s needs and the ability and willingness of the parents to meet those needs, with all of its nuances, cannot be determined with precision. The Court applies “models” and unstated presumptions in determining a parenting plan. There is no ability in such forums for robust fact-finding.
II. As a result of these and other factors, there is a material arbitrariness in the actual outcomes of contested family law adjudications. Many worthy parents are unjustly marginalized and the children miss out on what they had and what they might benefit from in future. Despite robust jurisprudence supporting equal shared parenting, and despite the current “maximum contact principle” in Section 16(9) of the Divorce Act, there is no predictability, nor any consistency in where, when and how certain children benefit from two primary parents and others have a parent marginalized. The arbitrariness of the current system manifests itself because of the following factors, amongst others:
a. The personal background, assumptions, biases and life experience of the particular Judge;
b. Whether the case takes place in an urban centre or a rural centre (less diversity of Judges in the locale and less evolution of the jurisprudence);
c. Whether the case takes place in a Province with more developed “maximum contact” and equal parenting jurisprudence;
d. Whether the local Judge has been trained in the latest social science research on children’s outcomes, which overwhelmingly support equal shared parenting; and
e. Whether one or both parties are self-represented, in which case the proper data presented in a legally admissible and persuasive manner are not available to the Trial Judge.
III. The current system (regardless of the length of listed criteria) provides no structure or guidance to parents at the time of separation. It can take up to six months after separation to get into Court for a contested Motion on an initial interim parenting plan. Chaos, self-help and power dynamics apply during the period from separation until the first contested Motion, with the more powerful parent dictating terms of access to the children to the less powerful parent. Only a starting point – such as a rebuttable presumption of equal parenting that can be addressed at the first Motion, can save families from the current chaos that exists at the time of separation, where perfectly normal parents are being marginalized by the dictates of the other parent, with the children used as possessions.
Submission to the House of Commons Standing Committee on Justice and Human Rights on Bill C-78 by the Canadian Association for Equality and Brian Ludmer, B.Comm, LLB. – Myths and Facts Concerning a Rebuttable Presumption of Equal Shared Parenting, 27 November 2018