Edmonton Sun: Sharing the burden a dicey approach to custody deals

My letter to Mindy follows:MJM

By MINDELLE JACOBS

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/48/Separated_and_Divorced.pdf. He is at UBC and Canada’s foremost leading researcher on custody. An obvious solution to a non-cooperative parent is to withhold shared parenting and grant access only. The legislation accounts for these instances.

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

IMFC eReview ~ Equal Parenting

We are seeing a more balanced perspective in this newsletter. Given the IMFC roots are on the religious right of the political spectrum it is clear they are pro-marriage but given some of these unions will fail other aspects that are fair to the children and both parents must prevail. Note the stats in the article indicating only an 8.5% rate for dads getting sole custody. The rest are either joint or sole custody to the mother. Joint custody is the manner in which family court judges across Canada offer bread crumbs to fathers but still give physical custody to moms.

The study by Professor Kruk, quoted in this article, also shows children and parents need at least a 40% amount of contact to maintain a parental bond. If this is not the case, these bonds diminish over time and children suffer causing the access parent and child to drift further apart. The normal contact given by family courts is 14%. (about 4 days a month). Superior Court Judges in Canada are responsible for this social engineering nightmare causing undue emotional trauma and poverty to children. This era, looked back on from the future, will be viewed with people shaking their heads and wondering how it could have been tolerated for so long.


I would recommend more research in the area of how a presumption of equal shared parenting with co-residency will reduce divorce rates. This has been noted in some jurisdictions. The following are some older references: (Dr. Margaret F. Brinig, Notre Dame Law School, Notre Dame, Indiana; Dr. Douglas W. Allen, Burnaby Mountain Professor of Economics, Department of Economics, Simon Fraser University, Vancouver, British Columbia; Dr. Sanford Braver, Department of Psychology, Arizona State University, Tucson, Arizona, Divorced Dads: Shattering the Myths, 1998; F. H. Buckley, Associate Dean, Foundation Professor of Law, George Mason School of Law: Executive Director George Mason Law and Economics Center, George Mason University, Arlington, Virginia.)

Also note that during this recession divorce rates will show a drop. Divorce is as much a function of economics as it is about interpersonal relationships. The vast majority of the demise of these unions are started by the female. One web site shows the applicant in 75% of Canadian divorces as the woman. In the USA it is 66%. Why? In the no-fault era are the pastures looking that much greener elsewhere? If so the dream of these pastures fails the litmus test of satisfaction in the vast majority of cases as second marriages or co-habitations have a higher rate of failure that the first time. Real abuse is only prevalent in a small number of cases.

Since the era of feminist inspired no fault divorces and the move from the equality notion of feminism to the current view of all women are oppressed by the patriarchy and, therefore, all men are abusers and oppressors, a cult of ideology has inspired, or rather brainwashed, many women into believing they are better off without their husbands. This may again be the oversimplification of these somewhat and somewhere mystical greener pastures. The true manifesto of these hardcore victim feminists are a woman can only be free if they take up with another woman. Its an interesting scenario given the DV rates between Lesbians is 40% higher than hetero couples. We are now seeing science fiction come to life in movies of two women getting sperm from their own stem cells. Spare me the incredulity of this scenario in which men are not needed. I did a little piece in my blogs with ideas from a commenter in creating a fictionalized feminist country in Africa where they don't need men and under UN auspices the country was protected for 10 years (by men mostly by the way). At the end of 10 years the protective mandate ended and they had their own Victim Feminist Defence Force (VFDF). I had set up odds in Las Vegas for the betting crowd to guess how many New York Minutes it would take for African Tribal Politics to overtake these Victim Feminists and truly oppress them. In any event it would prove that some parts of the Patriarchy are still needed and some elements of the biological differences are indeed not to be feminized.

It is my view that the whole idea men should be feminized and be more like women is to quote an old street slang saying "out to lunch." How many soldiers, police officers, firefighters, construction workers, miners, sailors, air force, et al are feminized. In the above roles not many feminized men or indeed feminists would last and they would be washed out very quickly. Those women who do try these roles fast become part of the masculine culture or they are not going to survive psychologically. One could say they are masculinized! They are still in every sense a woman, have their feminine attributes but in carrying out their role in these physically and psychologically challenging jobs have to adapt in a Darwinian form and manner to achieve success. In this case the adaptation would be first mental and then physical. Has anyone done a study on the relative levels of Testosterone in women in these kinds of jobs relative to the general population of females. Do they rise while performing their duties? If there is a rise is it diurnal, weekly, monthly, permanent while undertaking the job. My experiences with parenting full time for 10 years would suggest we are a highly adaptable species and just as adrenaline is produced in times of "fight or flight" perhaps our hormone balance can adjust when necessary. I will also posit not one victim feminist would ever apply for these jobs. They are also then Life Boat Feminists as they want to get in the lifeboats with the children to avoid the dirty work or jobs, that by the way pay more, or indeed if the metaphorical ship is sinking. Can you just picture these brave and heroic Victim/Lifeboat feminists on the deck of a sinking ship saying no I'll stay behind with you patriarchal oppressors. Not likely.

I was a stay-at-home dad for 10 years and I will put my nurturing skills up against any female any where on the planet. No one had to feminize me. Nature took its own course and I will posit Testosterone dropped and adapted me to this role while keeping me "manly." This mythology of oppression is bought hook line and sinker by law makers, judges, the media, advertisers, TV producers et al. It is, of course, rampant in the DV industry and it permeates magazines - which females buy by the thousands - to catch a whiff of their dreams. It says you should be empowered and stand on your own not next to your man. You can do better with your life if you are currently unhappy by getting rid of the oppressive man and piece of paper.


The dragon of feminist mythology is spreading throughout the world and has landed firmly in India, the second most populous nation on earth. So there you have one of the more fervent enemies of marriage and it is everywhere, not just as individuals but as an ideology and it will be tough to slay if it ever can. It is most prominent in the halls of higher education in women's studies courses, social worker courses, and there seems to be a preponderance of feminist female law professors (and male acolytes) who have no problem in lying to students, as Christina Hoff Sommers has reported, even in law course text books. Holy smokes how can that be the case?

Changing the Divorce Act to one of a presumption of equality and sharing is but one big step in that direction. It will be fought by these feminists as they believe they are, by divine right, the only proper carers for children and they will lose out on perceived entitlements like child/spousal support and all the government cheques. The latter will be the real reason not the best interest of the children. They will also use tax payer dollars to do so and are well funded. True feminists of the old school of equalism, drowned out by the most recent wave, will be less visible but many will agree its time has come. In Belgium it was a feminist minister in the government who steered equal/shared parenting into law.

Other factors enunciated by me elsewhere in this blog and more comprehensively by Dr. Jayne Major, in The Macabre Dance of Family Law Court, Abnormal Psychology, and Parental Alienation Syndrome can help to salvage marriages. Clearly a first step after a party decides they want a divorce is individual counselling first followed by joint counselling, if appropriate. Given the serious social context of divorce and its cost to the nation this would be compulsory.MJM

NO. 72

July 1, 2009

The eReview provides analysis on public policy relating to Canadian families and marriage.
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Equal Parenting Finding an equitable arrangement in divorce is important. Better still are parents who can stay together By Stefan Paszlack, Researcher, Institute of Marriage and Family Canada Last summer National Post columnist Barbara Kay asked this question: “When can divorced Canadian fathers – and their children – expect justice, so long demanded, so long promised and so long deferred?” [1] She’s not the only one. Equal parenting has been getting more and more attention, in particular when Dr. Edward Kruk released Child Custody, Access and Parental Responsibility: The search for a just and equitable standard in December 2008. Then on June 16, 2009, Maurice Vellacott , Member of Parliament for Saskatoon-Wanuskewin introduced Bill C-422. [2] It’s an equal parenting bill, which seeks to amend portions of the Divorce Act to change the legal presumption of sole custody in divorce disputes to one of joint custody. Certainly, this bill is an important step in the right direction for alleviating the distress of children and fathers, who are most likely to be alienated from their children after family breakdown. Equal parenting is indeed in the best interests of children as it replicates the intact family in a fractured family. But discussions of equal parenting tend to forget the main point. Divorce—even when judiciously applied—does not serve children, fathers, or families well. So what is equal parenting? Joint custody or equal parenting are terms used to describe divorce arrangements where both parents retain custodial rights of children. This means that children spend time with both parents and both parents retain the ability to make daily and long term decisions about their children. In 2004, 41.8 per cent of all divorce disputes in Canada ended in joint custody, 49.5 per cent of mothers were awarded sole custody and just 8.5 per cent of custody decisions were awarded solely to fathers. [3] One reason for the increase in popularity of equal parenting might be that retaining joint custodial rights for both parents encourages involvement from both the mother and father of a child and leads to an increase in the child’s overall wellbeing. [4] Dr. Kruk’s recent research illustrates this fact by concluding that children of joint custody arrangements fare better than their sole custody counterparts. [5] On the whole, however, children of divorce still fare worse emotionally, socially, and academically when compared to children from intact families. [6] The tough question that goes unasked in discussions of equal parenting is this: If parents can sacrifice their own personal interests for the benefit of their children in divorce, could they not sacrifice for the even better good of staying together? Just asking this question is to risk being castigated as heartless. Who would ask someone to stay in a terrible marriage? But while our culture maintains the belief that divorce provides blissful relief, the research shows that divorce and separation don’t always lead to happiness. A report by American academics, including renowned sociologist Linda Waite, states that “two out of three unhappily married adults who avoided divorce or separation ended up happily married five years later.” [7] The report finds that “[d]ivorce did not reduce symptoms of depression for unhappily married adults, or raise their self esteem, or increase their sense of mastery, on average, compared to unhappy spouses who stayed married.” [8] Certainly, not all marriages can be salvaged. But researchers distinguish between "low conflict" and "high conflict" marriages. Though the report states there is no consensus on how to define a high conflict marriage, this might include verbal or physical abuse. A low conflict marriage headed for divorce is one that is more likely to be able to be salvaged were appropriate supports, help and counseling applied. In Canada, a maximum of 15 per cent of divorces are the result of high conflict marriages. [9] And though staying together to resurrect a marriage on the rocks requires tremendous effort, neither is getting divorced without work and complications. Speaking of complications, there’s the financial side. Recent research by the Institute of Marriage and Family Canada highlights that a broken family is at greater risk of living in poverty. Lone parents are, in every province, substantially more likely to live below the Low Income Cut-off (LICO) or be on welfare. [10] Conversely, the benefits of happy marriages are numerous, including improved health outcomes, a greater propensity to build wealth, and decreased levels of crime and violence from within the family. Improved happiness is another reported benefit of a solid marriage and this is found across a wide range of countries and cultures. In a cross-national study a relationship between marriage and happiness was found in 16 of 17 participating countries, including Australia, Britain, Japan and Sweden. [11] The difficult question, of course, is how to achieve or rebuild this happiness. At least part of the puzzle will be the public awareness that a low conflict marriage can oftentimes be resolved and lead to happiness—where risks in divorce for children remain. None of this is meant to downplay the shift toward equal parenting in divorce. This is a positive development, which ironically manages to give preferential treatment to two parents in divorce, by correctly identifying that this matters to children, even when families break down. Equal parenting in divorce would be a positive accomplishment for families that fail. However, that accomplishment should never overshadow the bigger picture—that of striving toward marriages that stay together, not by force, or by gritting teeth, but rather because the marriage is happy and thriving, even after hitting a bump in the road. Endnotes [1] Kay, B. (2008, July 18). Give Dad a Chance; Research show that two parents are better than one. So why does the legal system still favour mothers? National Post, p.A13. Retrieved June 30, 2009 from: http://network.nationalpost.com/np/blogs/fullcomment/archive/2008/07/17/barbarakay-on-the-perils-of-divorced-fathers-for-the-sake-of-the-children.aspx [2] House of Commons Canada. (2009) C-422: An Act to amend the Divorce Act (equal parenting). Ottawa: Public Works and Government Services Canada. Retrieved June 10, 2009 from http://www2.parl.gc.ca/HousePublications/Publication.aspxDocId=3995880&Language=e&Mode=1&File=24#1 [3] Kruk, E. (2008). Child Custody, Access and Parental Responsibility: The Search for a Just and Equitable Standard, Father Involvement Research Alliance (FIRA), University of Guelph, p. 24. Retrieved June 10, 2009 from http://www.fira.ca/cms/documents/181/April7_Kruk.pdf [4] Ibid, p. 9. [5] Ibid, p. 11. [6] Amato, P. (1994). Life-Span Adjustment of Children to their Parents’ Divorce. The Future of Children, 4 (1), p. 145. Retrieved June 10th, 2009 from http://www.futureofchildren.org/usr_doc/vol4no1ART9.pdf [7] Waite, L., Browning, D., Doherty, W., Gallagher, M., Luo, Y. and Stanley, S. (2002). Does Divorce Make People Happy? Findings from a Study of Unhappy Marriages. New York: Institute for American Values, p. 5. Retrieved June 10, 2009 from http://www.americanvalues.org/UnhappyMarriages.pdf [8] Ibid, p. 4. [9] Department of Justice Canada (2004). The Early Identification and Streaming of Cases of High Conflict Separation and Divorce: A Review. Retrieved June 30, 2009 from http://www.justice.gc.ca/eng/pi/pad-rpad/rep-rap/2001_7/fram-formu.html [10] Mrozek, A. and Walberg, R. (June 2009). Private choices, public costs: How failing families cost us all, Ottawa: Institute of Marriage and Family Canada, p. 10. Retrieved June 20, 2009 from http://www.imfcanada.org/article_files/Cost%20of%20Family%20Breakdown%20finalHR.pdf [11] Stack, S., Eshleman, J.R. (May, 1998). Marital Status and Happiness: A 17-Nation Study. Journal of Marriage and the Family, 60 (2) pp. 527-536. Permission is granted to reprint or broadcast this information with appropriate attribution to the Institute of Marriage and Family Canada

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