On May 28, 2013, Conservative Member of Parliament, Maurice Vellacott’s private member’s bill to amend the Divorce Act was defeated by parliament at a second reading. The bill proposed that the Divorce Act include a presumption of equal parenting and allow existing custody agreements to be revisited with this presumption in mind. Specifically, the courts would be required to order a shared custody arrangement except “if it is established that the best interests of the child would be substantially enhanced by allocating parenting time or parental responsibility other than equally.” Currently, no such presumption exists in law. Instead, courts are to make child custody, guardianship, parenting time, and contact decisions based on one consideration and one consideration only: the best interests of the child.
To determine what is in the best interests of the child, section 37 of the provincial Family Law Act states that the following factors must be considered:
- the child’s health and emotional well-being;
- the child’s views, unless it would be inappropriate to consider them;
- the nature and strength of the relationships between the child and significant persons in the child’s life;
- the history of the child’s care;
- the child’s need for stability, given the child’s age and stage of development;
- the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
- the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
- whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
- the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
- any civil or criminal proceeding relevant to the child’s safety, security or well-being.
Implementation of the presumption in bill c-560 would, in many cases, effectively override the current provincial legislation given that the Divorce Act is the paramount legislation. The courts would start with the presumption and opposing parties would have to argue why the shared parenting regime is not appropriate in the circumstances. Critics of the bill, including the Canadian Bar Association, criticize the presumption as being unfair to children and possibly creating situations of reduced support payments. They also argue that allowing previous agreements would overhaul the courts. Others argue that presuming that an equal arrangement is best for all children is plain wrong. Rather, they contend that children’s needs and interests should be assessed on a case-by-case basis.
Proponents of the bill point to the multitude of fathers who have either been denied access or have been given disproportionate access and argue that a change is necessary – one that is geared toward equality. They argue that the presumption would work to keep both parents in the lives of children post marriage-breakdown and that parents would have to cooperate in establishing an equal parenting arrangement. The biggest advantage of the presumption, they maintain, is that it will eliminate a key incentive for acrimonious legal conflict, which we can all agree causes deep emotional harm to the children.
Bill C-560 faced a huge defeat, with a vote of 80 in favour of the bill and 174 against. However, the bill will return and will be read again and referred to the Standing Committee on Justice and Human Rights. It’s definitely an interesting and thought-provoking subject.
If you have a family law matter, please contact one of our lawyers in the Family Law practice group.