Despite the fact that 80% of those surveyed would like both parents to have equal time with their children, instead of a preference for the mother, politicians refuse to change parenting laws. The amount of family law litigation caused due to this, and the high costs of family law attorneys, is out of control.
Supreme Court Chief Justice Beverley McLachlin has commissioned a report aimed at overhauling Canada’s family-law system. Its recommendations, which will be officially released later this month, reportedly include strategies for streamlining the legal process, encouraging mediation and reducing litigation.
The report will note that the number of self-representing litigants in family-law cases has climbed to above 70%, largely due to the exorbitant cost of lawyers. That statistic suggests the economic hardship that fractious breakups impose, but not the heartbreaking human costs imposed on parents — especially fathers, who often find the deck stacked against them in court.
Efficiency, reduced costs and diminished litigation are worthy goals in a system notorious for being out of control in all these areas. But a more fundamental reform also is needed: The establishment of equal shared parenting as the default in custody after marriage breakdown.
In most contested cases, mothers are awarded sole — or effectively sole — custody over children, with fathers relegated to the role of visitors, an unsatisfactory situation for them and for their children. Even unlitigated cases are settled “in the shadow of the law” — meaning that fathers often are advised by their lawyers to settle for whatever they can get, as they know the deck would be stacked against them in court.
Equal shared parenting — a minimum of 40% of time spent with children by each parent — has been federal Conservative party policy in theory since 2002, following an exhaustively researched landmark federal study in 1998, “For the Sake of the Children,” which recommended equal parenting as the presumptive custodial arrangement in the absence of abuse.
But in spite of its own avowed, reiterated position — and polls showing 80% of Canadians support a strong role for both divorced parents in the lives of their children — Stephen Harper’s government has failed to enable MP Maurice Vellacott’s repeated motions to that end. As a result, fathers often continue to be unjustly marginalized in family court.
We know much more about the effects of enforced separation from fathers on children than we did even a decade ago. Yet anti-father myths persist, such as: that infants and toddlers have only one primary “attachment figure”; that overnighting away from mothers causes anxiety or maladjustment in all infants and toddlers; that children prefer living with only one parent, and shared parenting isn’t worth the hassle; that shared parenting works only in the case of harmonious divorces; and that the quality of children’s relationships with their fathers is not related to how much time they spend together.
Dr. Linda Nielsen, professor of Adolescent and Educational Psychology at Wake Forest University in North Carolina, debunks such myths in a recent feature article published in The Nebraska Lawyer, “Parenting Time and Shared Residential Custody: Ten Common Myths.”
In her study, a meta-review of 64 articles published in peer-reviewed journals, Neilsen concludes that “infants form strong attachments to both parents at roughly the same time. Whatever preferences infants might have for one parent disappears by 18 months of age.” She found seven studies that have assessed overnighting of preschoolers, and “none of them found statistically significant differences in instability or other measures of maladjustment.” Also: “The vast majority [of children] who have lived in shared residential parenting families say the inconvenience of living in two homes was worth it,” and “most children in shared residential custody and those who see their father frequently are better off on measures of well-being even when their parents have ongoing conflict.”
Most importantly, she concluded that “fathering time, especially time that is not limited mainly to weekends or to other small parcels of time, is closely associated with the quality and endurance of the father-children relationship. This kind of fathering time is highly correlated with positive outcomes for children of divorce.”
Justice McLachlin’s goal of encouraging mediation and settlement is a noble ideal. But unless the unlevel playing field of family-law litigation is corrected, her proposals will prove merely cosmetic — both for Canadian fathers and for the children who desperately need to spend time with them.