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Jan. 21, 2019-Myths v. Facts #2

2. Myth: It is necessary to make a custom inquiry into the best interest of a child without any guidance, other than a list of criteria; a rebuttable presumption detracts from this necessary custom solution.


I. Judges themselves will indicate that they do the best they can with limited information (and they are particularly limited in their fact-finding ability at a Motion based solely on affidavit evidence) but they will never actually get to know the people involved or actually know who is telling the truth about various matters and therefore they do not actually know whether they are making a decision in the best interest of the children. Judges are usually quite candid about their own understanding about the limitations of the current system.

II. There are no retrospective studies of the jurisprudence and families who have gone through an adjudication under the current system which would substantiate that a “custom” solution produces better outcomes, as opposed to following the overwhelming science which suggests that the closer you get to two primary/equal parents the better the outcomes. The science is supported by Meta-Analyses by Professor Linda Nielsen of Wake Forest University, Professor William Fabricious of Arizona State University (a witness on November 26) and Canadian peer-review journal experts Professor Edward Kruk of UBC (a witness) and Professor Paul Millar of Nipissing University and an international body of research available through various organizations, including the International Council for Shared Parenting.

III. With two normal parents it is unnecessary and indeed problematic to search for which parent is “better” when each has their own respective positive and negative attributes. A broad range of parenting styles and interests can produce healthy child-rearing. The types of parenting impairments that are relevant to a parenting plan are quite obvious, and relatively rare. A granular review of minutiae of the family history and prior parenting issues is not required to advance children’s future best interests. Accordingly, litigation and a departure from shared parenting should be reserved for only the most extreme cases of impaired parenting practices.

IV. The current system encourages parents to try to introduce as much negative material about the other parent as possible and provides incentives for false allegations and exaggerated claims about the other parent. The current system provides incentives to pressure and influence children against the other parent. In midst of all of this “smoke”, it is frequently the case that Judges do not get to the right answer.

V. Science supports the view that it is the perpetuated conflict of the current system, as opposed to not getting the precise customized plan that is most damaging to children. There is no science behind a determination that post-separation a parent who interacted with the children daily should see them 37.2% of the time.

VI. The parenting schedule itself is rarely an adequate solution to concerns about a particular parent’s logistical or parenting challenges. It is usually the case that equal parenting supported by driving assistance, after-school care, a parenting or other course or the addition of a parenting coordinator can more granularly resolve the particular concern and therefore permit the scientifically supported benefits of two primary parents. Even a parent reduced to 1/3 of the time (if they have logistical or parenting impairments) can still create the same issues and therefore the parenting schedule is not the right tool to deal with the vast majority of concerns in assisting a family in restructuring post-separation.

VII. The leading social science research clearly concludes that the amount of time spent is crucial in fostering and maintaining parent-child relationships There is no substitute for actual time spent together and sharing life’s experiences together in supporting parent-child bonding.

VIII. The vast majority of parents, due to the cost of litigation, cannot afford the detailed granular review of issues that is theorized by the proponents of the current system. Their search of “best interests” with merely a list of criteria is simply aspirational – in practice it rarely happens, due to cost, delay, and the overwhelming impact of the continuing conflict during the time that the case is proceeding on its laborious path. Meanwhile the children are necessarily being triangulated into the dispute as both parents lobby for their loyalty.

IX. Surveys of children and of parents who have experienced separation refute this myth.

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

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