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Political Issues This forum is for discussing the political aspects of divorce: reform to divorce laws, men's rights, women's rights, injustices in the divorce system, etc.

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Old 05-27-2006, 01:13 PM
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It's a controversial topic Grace - I will get the information for you. I believe that California, for example, has something in place along those lines. I had also heard that Australia has implemented a nation-wide presumption.
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Old 05-27-2006, 06:10 PM
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Default Joint custody article

To strengthen the issue on Joint Shared custody being or becoming law, there is a Professor at the University of British Columbia, Edward Kruck Phd. that is , I think the formost expert on this issue and has a book out on the market along with a number of articles at the university that can be accessed that will open peoples eyes as to this issue and why it should become law that Parents should shre that load of parenting equally.
The book is call Divorce and Disengagment. Buy it to educate yourselves about this issue and just how Father's are being affected.
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Old 05-27-2006, 09:48 PM
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Bill C22

The bill that got buried that would of reformed the Divorce Act (Canada).

http://www.parl.gc.ca/37/2/parlbus/c...2_cover-E.html


lv
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Old 05-27-2006, 10:35 PM
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Excuse my naivety in Cdn politics by why did it die? Not enough interest?
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Old 05-27-2006, 10:56 PM
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It died on the order paper when the previous government fell - all legislation and potential legislation that is sitting at committee dies when an election is called.
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Old 05-27-2006, 11:31 PM
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Hill and other Conservatives are harshly critical of the Chretien-era Bill C-22, which died after being introduced in 2002 by former Liberal justice minister Martin Cauchon.

I mean why did it die in 2002, when the Liberals were still in power?
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Old 05-27-2006, 11:59 PM
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If I recall, it was sent back to committee for further study - loose translation: Martin was coming in as PM and he would have his own agenda, divorce reform was low on the priority list. Irwin Cotler who was his Justice Minister had intended to resurrect a further watered down version of C-22 but the Liberals lost the election this past January.

I believe the plan with the Conservatives is to implement the recommendations of the Joint Committee on Custody and Access in from their 1998 report "For the Sake of the Children". I actually would be more than pleased to have changes to the Divorce Act introduced, if anything, to stimulate a national debate similar to that which occurred during the same sex marriage debate of the past few years.

It's important to remember that whether the Tories introduce a presumption of shared parenting in any new legislation, I doubt very much that it will have any effect on the family law system in this country. As I said earlier (and have said in other threads) "you can't legislate good behavior among parents" - if one parent wants sole custody they are going to pursue it using the adversarial family law system regardless of whether shared parenting is the law or not.
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Old 05-28-2006, 10:10 AM
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This is somewhat off topic but relevent to the concept.

In this case of authority, the Judge discussed the presumption of Joint Custody since Kaplanis supra

J.B. v. A.B., 2006

http://www.canlii.org/on/cas/onsc/20...onsc10823.html

Before Justice Joseph W. Quinn

Heard on 4-6 and 9-11 January 2006

Issues

CUSTODY OF CHILD — Best interests of child — Conduct of parties — Domestic violence — Spousal abuse — During cohabitation, father heaped sarcasm and verbal abuse on mother and did make death threat against her — But even local children’s aid society agreed that these matters were situational and unlikely to recur and were aspect of father’s overall immaturity — He simply did not react well to crises or setbacks in his life but would never have capacity to carry out death threat — It was empty act of man caught up in stress and frustration of failed marriage and lacking emotional means to deal with situation — Mother had no fear of him and her own self-esteem was never affected by his behaviour — Evidence of his interaction with child was exemplary and there was never any suggestion that would reacting inappropriately with respect to child — Joint custody order.

CUSTODY OF CHILD — Form of order — Joint custody — General — Operative but rebuttable presumption that joint custody is best for child — Court reasoned that public perception of non-custodial parent as second-class parent undeserving or unqualified to have custody is often inaccurate — Child’s best interests are ill served by this perception and would be better served by having two parents who participate in making important decisions in child’s life — Hence, presumption in favour of joint custody, meaning that initial burden of proof falls on parent opposed to joint custody to rebut presumption, but it may take very little evidence to do so (sometimes, evidence of single troubling incident) — Once presumption is rebutted, burden shifts to other parent to prove that joint custody would still be in child’s best interests.

CUSTODY OF CHILD — Form of order — Joint custody — Grounds — Ability of parties to co-operate — Separated parents, particularly estranged parents, should not be held to unrealistic level of mutual co-operation — Co-operation should be workable, not blissful, and adequate but not perfect — In this case, parents communicated adequately about the child and there was no evidence about material instances of non-communication — Facts in this case met burden of proof in non-criminal proceedings, which was not formidable and persuaded court, on balance of probabilities, that child’s best interests would be served by joint custody of both parents.



5: DISCUSSION

5.1: Custody

[60] A non-custodial parent is frequently perceived in the community as undeserving or unqualified to have custody of his or her child; and this perception is not always accurate. The result is that, sadly, a great many non-custodial parents are unfairly seen as second-class parents. It is not in the best interests of a child to have one of his or her parents viewed in this fashion.[22] The interests of a child are better served by having two parents participate in making the important decisions in his or her life. Therefore, I begin with the rebuttable presumption that an order for joint custody is best for a child and then I look for evidence to the contrary.[23] This means that the initial burden of proof falls on the party opposing a joint custody order to rebut the presumption. It may take very little evidence to do so (sometimes a single troubling incident will suffice). Once the presumption is rebutted, the burden shifts to the parent seeking joint custody to prove that such an order is in the best interests of the child.

Footnote

[22] - Two-tiered parenting also breeds antagonism between fathers and mothers.

[23]. This presumption is not inconsistent with subsection 20(1) of the Children’s Law Reform Act, which says: “Except as otherwise provided in this Part, the father and mother of a child are equally entitled to custody of the child.” The Divorce Act does not contain a comparable provision; neither does that statute preclude the presumption of which I speak.

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Old 05-28-2006, 10:50 AM
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Excellent bit of case law LV -highlights many concerns that a lot of people share.

Introducing mandatory shared parenting definitely shifts the burden of proof from the person who wants shared parenting to the person who opposes it. So it would be reasonable to use a crystal ball and examine how a mandatory shared parenting regime might play itself out within the existing family law system.

Scenario:

John and Joyce have 2 children and have been married for 12 years. The kids are 6 and 8. Both parents have worked full time and the children have been in daycare since they were 2 years old while the parents worked. John and Joyce's marriage is going down in flames. John and Joyce are exceptional parents and both have been actively involved in the primary care of the children all their lives.

The parties separate and like most fathers, John decides to move out before there has been any agreement established regarding custody and access to the children. John has made it known that he would like to have a shared parenting arrangement where the kids spend equal times in both homes. Joyce is opposed to the idea citing the following reasons:

- the kids need one home, not two.
- the kids will be bounced around
- someone needs to be in charge
- John is only interested in shared parenting to avoid the child support guidelines.


One month after the separation:

Both parties retain lawyers and both parties have been told that shared parenting is mandatory under recent changes to the Divorce Act. Joyce opposes shared parenting for the aforementioned reasons and John's lawyer recommends that John take a cautious course toward shared parenting because no order is in place regarding the children and it would be unwise to immediately begin litigating custody and access issues as the conflict would increase dramatically. The two lawyers begin the process of negotiating a settlement of all outstanding issues by fax - largely to identify both parties positions.

John is served with a Statement of Claim for Divorce and Division of Matrimonial Property. John reads the Statement of Claim and under the heading "claims under the divorce act", Joyce asks the court for joint custody with primary care, control and residence to her and access for John of every second weekend with an overnight every second Wednesday.

Two months after the separation

John offers to attend family mediation through his lawyer and both parties begin the mediation process. They make great progress on Division of Assets and Matrimonial Property and a new session is scheduled to begin the process of negotiating an agreement as it relates to the children. John has been seeing the children every second weekend for the last two months and has broached the topic of increasing the children's time with him on numerous occasions, however, Joyce is vehemently opposed to this.The conflict between the parents increases dramatically as it relates to access to the children.

Three months into the separation
The parties have now attended two mediation sessions regarding custody and access and both are deeply entrenched in their positions. Joyce opposes shared parenting, John is in favor of it. The mediation process is clearly at a stalemate and ultimately breaks down - all agreements reached in mediation are now null and void as the process was without prejudice - both parties return to their lawyers. The conflict between the parents increases dramatically as it relates to access to the children.

Four months into the separation
John is tired of thes stalemate. He wants the kids half the time in accordance with the recent changes to the Divorce Act. Joyce still opposes it. John decides to seek relief through the courts. He makes his notice of motion, and Joyce is served with the Notice of Motion as well as John's Affidavit. Joyce reviews his Affidavit and prepares a responding Affidavit. In her Affidavit she cites that she has always been the children's primary caregiver and questions the motivation of John in seeking shared parenting. She cites that he has been refusing to pay child support as the law states that shared parenting is mandatory. She further states that the conflict between both parties is extreme and that someone needs to be in charge - might as well be her since she has been the primary caregiver.

Five months into the separation
Both parties appear before Justice Bloggins in Court of Queen's Bench. Justice Bloggins has already heard 10 similar motions that morning prior to John and Joyce. Justice Bloggins has a supervising judge who has been telling him, "clear the docket - get as many people in and out of court as fast as you can". Justice Bloggins asked the Clerk of the Court to provide a summary of the Affidavit contents because he doesn't have time to actually read the parties Affidavits. Both parties appear to be mired in a custody dispute, but there needs to be some Court Order in place to govern the custody/access situation on an interim basis. Justice Bloggins decides to uphold the status quo with a small revision - John can now have the kids every second Friday and drop them off at school on Monday mornings. Justice Bloggins tells both parties that the conflict has to stop beause it's impacting the children. He further states that there is simply too much conflict for shared parenting to work at this juncture. The case is headed for a trial. John is flabbergasted.

Month five to trial
Both parties are clearly focused on their own goals. John feels justified in seeking shared parenting as it's the law, is angry and frustrated that he is having to go to trial to enforce something that is clearly the law. John's lawyer explains that regardless of what the law says, a judge isn't going to order shared parenting if there is too much conflict between the parents.

A bi-lateral parenting assessment occurs. It finds that both parties deliver adequate child care but that both parents are pre-occupied with looking good to the assessor and that the conflict between the parties is extreme. It recommends that the children remain with Joyce because of the conflict.
John is apoplectic - "SHARED PARENTING IS THE LAW!!!!!"

Trial
It's an ugly trial. John's lawyer is arguing that shared parenting is mandatory and Joyce's lawyer argues that while it might be mandatory, it is not in the children's best interests to have shared parenting in such a dysfunctional situation and since Joyce has had the children living with her for the past eleven months, it wouldn't be in their best interests to go to shared parenting as this is the status quo - changing it would negatively impact the kids. Joyce's lawyer asks Justice Higgins to uphold the status quo and defer to caution.

Decision
Joint custody with primary care to Joyce. Justice Higgins decision states that the parties are too embroiled in conflict to make shared parenting work and that while shared parenting is mandatory, Joyce has provided sufficient evidence to show that shared parenting won't work.


That's my take on it. So it begs the question:

- Who is at fault?
- Does fault even matter when conflict exists between the parents and both parents are actively engaged in it?
- Was John's lawyer wrong to suggest taking a cautious approach early on?
- Should John have immediately gone to court at the time of separation?

Any shared parenting law has to take factors like this into consideration. Further, if the goal is to make shared parenting mandatory, presumably any new legislation would have to include mechanisms that will guarantee shared parenting from the moment of separation and frankly, I can't see how federal legislation can do that. Shared parenting legislation will mean that unless both parties agree to shared parenting in writing at the moment of separation, there will be a race to the court house to get an interim order in place either in favor of or opposed to shared parenting.

So, what's the answer?

There isn't one. We can't force shared parenting on people even though it might be an equality issue for some. Further, what kind of poisoned atmosphere for children would we have if parents had to immediately access the courts upon separation so that neither party can take advantage of the unwritten "status quo - too much conflict between the parents for shared parenting to work" argument?

Last edited by Divorcemanagement; 05-28-2006 at 10:58 AM.
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Old 05-28-2006, 08:44 PM
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I do see the point, and for some individuals they would go to great efforts to sabotage a joint custodial relationship. ie: refusal to co-operate or to communicate.

However, there is always a Parallel Parenting, a form of joint custody, whenever the child is with the parent, that parent makes decisions in regards to the child. This type of custody regime has been ordered in circumstances to prevent one parent from marginalizing the other parent from the children's lives.

I can think of a few authorities where this model has been ordered.

Cox v. Down Stephen - COURT OF APPEAL FOR ONTARIO [2003]

http://www.canlii.org/on/cas/onca/20...onca10838.html

LV
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