Jan. 24, 2019-Myths v. Facts #3

3. Myth: Equal shared parenting is not appropriate for all families.

Facts:

I. According to the science, and decades of polls of public opinion across North America, equal shared parenting is appropriate for most, if not the vast majority of, families. By preventing undue litigation concerning families contesting parenting plans within a narrow range (as both parents are normal range), the very expensive family law system can devote its resources to the families with significant issues.

II. Many who contest equal shared parenting as the appropriate outcome for most families usually have a vested stake in the current litigious system, either because they feel that if that favours their constituency or because they are remunerated from the current system as a service provider or academic in some fashion.

a. For decades, public opinion in Canada and across North America has been very strongly in favour of a presumption of equal shared parenting. Canadian polling has consistently indicated that over 70% of the population (notably measured across all demographics – age, gender, political affiliation and region) support ESP. Support is over 80% once undecided responses are factored out. Opposition is typically less than 10%. The public, who have directly experienced (the divorce rate is approaching 50%) the current litigious system or who have immediate family members or close friends who have directly experienced the current system uniformly is of the view that it is costly, wasteful and harmful to children and that the results do not advance children’s best interests and the perpetuation of the conflict is itself a palpable harm. Science supports the view that the conflict itself, as opposed to the particular parenting plan, is the greatest risk to children. The science is clear that the closer you get to two equal primary parents, the better the long-term outcomes for children of separated families.

b. The overwhelming scientific consensus in favour of equal parenting for most families as a means of enhancing child outcomes is widely published and summarized in Professor Fabricius’ presentation. It is accessible on various websites that compile this including those of the Canadian Equal Parenting Coalition, Lawyers for Shares Parenting, Leading Women for Shared Parenting, National Parents Organization and the International Council on Shared Parenting. Meta Analyses by Professor Linda Nielsen and by Professor Edward Kruk of UBC and Professor Paul Millar of Nipissing University demonstrate that the only published studies which so not support ESP were biased and/or poorly structured and/or of limited sample size or not even peer-reviewed in a leading Journal.

c. The public experience with the current dysfunctional system – it does not advance children’s best interests – is so pervasive, that this informed experience trumps the views of those who make their living off of the current system. Millions of Canadians’ collective experience (representing millions of affected children) cannot be wrong, rather this experience should inform those charged with considering reforms to the system and updating the legislation for today’s realities.

III. A rebuttable presumption of equal shared parenting does not impose that solution for all families. It merely recognizes public opinion (i.e. the actual consumers and clients of the current dysfunctional system) and the applicable science to indicate that the needs of the children must be “substantially enhanced” for a departure from an equal parenting solution. In other words, a presumption of ESP is just the starting point for the analysis. Courts are now recognizing that parenting coordinators and more granular directives and remedies (therapy, parenting courses) are the appropriate solution to perceived issues, particularly if they are transitory, as opposed to crafting an unbalanced parenting plan, which leaves the issue unresolved.

IV. In intact families the state does not intervene in the parenting dynamic unless there are child protection issues. That should be the similar standard post-separation – parents who are “normal” in that their parenting knowledge, skill set, attitude and aptitude is within a broad range of normality should have equal parenting, since the science does not support any precise parenting plan other than equal parenting in such circumstances. There is no “science” in a determination that a particular parent should have the children in their care 37.2% of the time.

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