Last Updated: 19th August 2009, 3:13am
For years, family advocates of one sort or another have been trying to replace the emotion-laden phrase "custody and access" with the supposedly gentler and more equitable term "shared parenting."
Eleven years ago, a special parliamentary committee recommended such a move but the Divorce Act remains unchanged.
Now a Saskatchewan Tory MP is taking a stab at it. Maurice Vellacott's private member's bill would require judges to apply the principle of equal shared parenting except in proven cases of abuse or neglect.
Justice Minister Rob Nicholson isn't a fan of the bill. Nor, apparently, is the Canadian Bar Association, according to news reports from the CBA's annual meeting in Dublin this week.
Vellacott's bill may be well intended but no one's figured out how to make two ex-lovers who hate each other more than they love their kids compromise for everyone's benefit.
You often hear about high-conflict custody cases because fireworks attract attention and we tend to have a morbid fascination with the evil machinations of squabbling couples.
So people get the false impression that court battles are the norm when it comes to divorce. On the contrary, the vast majority of divorcing couples are able to settle their differences amicably, outside of court, and their kids are better off for it.
Only a small minority of cases end up before a judge these days because so many couples have wised up and realized that mediation is healthier and cheaper than beating each other up in court.
"We're trying to take a more holistic approach to family law because we know once our files are over, these families go on," says Montreal lawyer Karen Kear-Jodoin, past-president of the CBA's family law section.
"I used to be this big litigator ... and I loved it," she adds. "But I realized as time went on that it's not necessarily best for my clients because they spend so much money and the outcome is not always satisfactory to anyone."
Marla Miller, an Edmonton registered family mediator and collaborative family lawyer, agrees. There's been a dramatic attitude change over how to handle divorce over the years, she explains.
Not long ago, it was rare to see the children of divorced parents share their time equally between mom and dad, she says.
"Now it's one of the most common arrangements." A child will typically spend one week with mom and the next with dad, she says.
"I never would have thought that we would see a situation where parents would quite often negotiate an equal sharing of the time. Things always evolve."
What obviously hasn't evolved is the worst of human nature that drives ordinarily civilized people into torrents of rage and vengeance because love has evaporated.
So I share the skepticism of both Kear-Jodoin and Miller that Vellacott's vision of presumed equal shared parenting will work with couples who are too full of hatred to have a quiet discussion about the best interests of the kids.
Both lawyers say Vellacott's proposal risks even nastier court battles as parents try to prove shared parenting would be a disaster.
"I can see the affidavits that are going to be exchanged -- every bit of dirt," says Kear-Jodoin. "When you force (unwilling) people to make decisions together, every decision becomes a source of conflict."
Expecting divorced couples who prefer scorched-earth tactics to happily "share" parenting is absurd. Tragically, their kids just have to find a way to cope.
MINDY.JACOBS@SUNMEDIA.CA
Mindy:
You may want to check on Edward Kruk’s research on shared parenting. A PDF of his most recent work is available here http://fira.ca/cms/documents/
My 11 year old loves her mom and dad and has no trouble managing visits between homes. She desires equal time when she is not being alienated by mom.
On a further note which I am exploring is the following given the CBA is a lobby group and Nicholson is a member of this very same group.
The Canadian Bar Association is a powerful Lobby Group. Many of its members sit in Government, indeed in Cabinet, but yet they can freely lobby the government even in foreign countries. Here we have a member of the bar, flying to Ireland at tax payers expense, who is also a Cabinet Minister, being lobbied by his colleagues to not enact a private members bill that will ultimately cost them some business.
Heaven forbid that parents would have equal shared parenting rights on cessation of their marriage and spoil the average $25,000.00 these highly paid individuals receive from the average client, who can afford a "National" convention in the homeland of my ancestors. Ireland does appreciate the business, however, as their economy is one of the worst in Europe. The CBA knows how to bargain for the sweetest deals it can get.
These politicians who are lawyers, and there are many, and these lawyers who are all members of this lobby group called the Canadian Bar Association, tout the best interest of the child mantra which has no legal definition. They use it but don't subscribe to it. The best interest of the children is to have both parents in their lives pre and post divorce if they are fit. The legislation discusses fitness.
Do not let the CBA fool anyone. In practice these lawyers will abandon any client who runs out of the money they line their pockets with. Ask anyone who has been through family court and suddenly found they do not have the money to finish. Their lawyer opted out of the case and to hell with the best interests of the child. It is a canard. They are in it for the money not the children.
M. J. Murphy
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