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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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  #1  
Old 01-30-2018, 06:42 AM
ifonlyihadknown ifonlyihadknown is offline
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Default Petition on assumption of shared parenting

There was an electronic petition circulating a while ago asking for:

PETITION TO THE GOVERNMENT OF CANADA
Whereas:
  • for several decades we have been witnessing a shift in family models, with more and more families separating;
  • children have the right to spend equal time with both of their parents who love them and whom they love;
  • many studies show that children must spend as much time as possible with both parents to prevent relational disengagement;
  • it’s important to recognize the key role and commitment of each parent toward their child(ren);
  • the justice system often gives primary custody to the mother, if the parents disagree;
  • most parental conflicts involve the child’s care and, if care is shared equally by default, the parents could focus their energy on their child(ren) instead of on the conflict;
  • it would be necessary to rethink the situation to ensure greater balance (especially for shared parental time) between both parents, in the best interests of the child;

We, the undersigned residents and citizens of Canada, call upon the Government of Canada to update legislation dealing with divorce and parental separation so that:
  • if the parents are able, shared custody be the default option for children if their parents separate;
  • if geographic distance means that shared custody is not an option (and if the parents are able), any solution to ensure the most contact possible with the “non-guardian” parent be prioritized.

The government response has come down with the conclusion being:
Many have raised important concerns about the danger of establishing a “default option” or legal presumption in favour of equal shared parenting. Equal shared parenting requires considerable cooperation between parents. This may be difficult in high-conflict situations, potentially exposing children to frequent arguments between their parents. A presumption could also increase litigation. Instead of being able to come to their own agreements out of court, parents who do not agree to share parenting time equally would have to go to court to explain why this arrangement would not work. Finally, a presumption could be dangerous to parents as well as children in situations of family violence.

Social science research does not support the creation of a presumption of equal parenting time. Each individual child deserves to have their own unique needs and situation addressed. The best interests of the child test allows for such an individualised approach. Rather than improving outcomes, a presumption could create problems for many families. The Government of Canada therefore does not support the creation of a presumption in favour of shared custody. Instead, it supports the application of the best interests of the child test and the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child.
IMHO, this is a load of crap, but what do I know. Whenever I see the term i the best interests of the child, I cringe, as it can be used to justify just about any thing.

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Old 01-30-2018, 10:39 AM
whyme? whyme? is offline
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what a complete load of crap - they really just don't get it. I really wonder what it's going to take to change the family law conundrum here in Canada??
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Old 01-30-2018, 10:39 AM
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http://www.ourcommons.ca/Content/ePe...1933_JUS_E.pdf

The Government of Canada is committed to promoting the best possible outcomes for families going through separation and divorce. Families and courts need flexibility to craft parenting arrangements to meet the needs of each individual child in that child’s specific situation.

It is important to underline that the federal government shares responsibility for family law with the provinces and territories. The federal government is responsible for the Divorce Act. This means it is responsible for divorces and
matters related to divorce – including child support, spousal support and parenting (or custody and access) – for divorcing or divorced couples. The provinces and territories each have their own family law legislation. Provincial and territorial laws deal with child support, spousal support and parenting for separating couples who do not seek a divorce.

The Divorce Act is crafted in a manner that allows it to coexist harmoniously with provincial and territorial family laws, and any amendments to the Divorce Act should be consistent with this overall approach. It is important to note that no province in Canada has a legal presumption or “default option” of shared custody. The introduction of such an approach in the Divorce Act would result in inconsistencies with provincial and territorial laws. This would mean two different frameworks for separating parents based only on whether or not they seek a divorce. This could be very confusing for parents without lawyers; in some jurisdictions, as many as three-quarters of family law litigants are self-represented.

Under the Divorce Act, courts consider only the best interests of the child when making an order for custody and access. There is no presumption in favour of either parent. Courts must also give effect to the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child. This principle applies both when parents live in the same city and when one parent proposes to move away with or without the child.

As the petition suggests, many fathers are playing a much more active role in parenting than had been common in previous generations. A legal presumption is not necessary to reflect this societal change, however, as courts and parents are already reflecting the changing roles of parents in orders and agreements. While most separating parents come up with their own parenting arrangements without seeking court assistance, when courts are involved, judges generally order some type of sharing of responsibilities between parents. In fact, a review of reported family law decisions from 2015 showed that in 79% of parenting cases, courts ordered either joint custody (where parents make decisions about their child together) or shared custody (where parents make decisions together and the child spends at least 40% of the time with each parent).

Many have raised important concerns about the danger of establishing a “default option” or legal presumption in favour of equal shared parenting. Equal shared parenting requires considerable cooperation between parents. This may be difficult in high-conflict situations, potentially exposing children to frequent arguments between their parents. A presumption could also increase litigation. Instead of being able to come to their own agreements out of court, parents who do not agree to share parenting time equally would have to go to court to explain why this arrangement would not work. Finally, a presumption could be dangerous to parents as well as children in situations of family violence.

Social science research does not support the creation of a presumption of equal parenting time. Each individual child deserves to have their own unique needs and situation addressed. The best interests of the child test allows for such an individualised approach. Rather than improving outcomes, a presumption could create problems for many families. The Government of Canada therefore does not support the creation of a presumption in favour of shared custody. Instead, it supports the application of the best interests of the child test and the principle that a child should have as much contact
with each spouse as is consistent with the best interests of the child.

http://www.ourcommons.ca/Content/ePe...1933_JUS_E.pdf
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Old 01-30-2018, 10:44 AM
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You missed the other 5 paragraphs of the government response. It isn't a load of crap. Its quite a valid position.
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Old 01-30-2018, 11:34 AM
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Quote:
Originally Posted by Tayken View Post
In fact, a review of reported family law decisions from 2015 showed that in 79% of parenting cases, courts ordered either joint custody (where parents make decisions about their child together) or shared custody (where parents make decisions together and the child spends at least 40% of the time with each parent).


In 97% of heterosexual intercourse events, the male has an orgasm, or they both have an orgasm. Therefore, women should not be complaining about orgasm frequency.
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Old 01-30-2018, 12:42 PM
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In 97% of heterosexual intercourse events, the male has an orgasm, or they both have an orgasm. Therefore, women should not be complaining about orgasm frequency.
In the handful of cases where shared (equal) access is not ordered it is because either both or one of the parents is unable to get along with each other, one parent geographically is not available to support shared access, or another reason that requires the "best interests" test to be applied. There is no magical default for parents to get something. Neither man nor woman.

A presumption would be challenged in 99.9% of the high conflict cases anyways. So it goes to the lowest common denominator of "best interests".

Although amusing as your example is... The first step to "heterosexual intercourse" is "consent". When you have warring parents it is a situation where "consent" to parent properly is absent from one or both parents.

We have a presumption of joint custody explicitly stated in Ontario in the CLRA. We don't have a presumption on equal access. Parents either "lose", this or consent it away.

It is a very small % of very highly conflicted parents that fight and lose.

The problem isn't in the court system. It is in popular culture. People fighting for a presumption of access would be better off running advertising stating that both parents are equal in the eyes of their children and to not fight over petty nonsense...

Case on point: http://www.ottawadivorce.com/forum/s...ad.php?t=21626

That poster is clearly the conflicted party fighting over really... 45-minute commute to school. Rather than simply moving or sucking it up and realizing children in rural communities in SK spend longer on a bus.

You may not like the statistic as it is stated but, it demonstrates progress.

Another example of where the presumption would have failed... In fact, one would say it was possibly applied and a judge applied the test and well, it failed.

Romita v. Humphries, 2018 ONCJ 18 (CanLII)
Date: 2018-01-05
Docket: Brampton 875/15
Citation: Romita v. Humphries, 2018 ONCJ 18 (CanLII), http://canlii.ca/t/hppfq

It all boils down to... no matter what the presumption is... those who are going to fight will fight no matter if the presumption exists or not. It won't save the 1-2% edge cases that go to trial.

A presumption wouldn't even help the idiots who sign away everything on consent. We need society to change the message... Not the courts.

Last edited by Tayken; 01-30-2018 at 12:49 PM.
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Old 01-31-2018, 01:00 AM
denbigh denbigh is offline
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They do get it, that is why they are not changing it.
That petition made no mention at all of family violence. presumption of equal shared parenting would make it much harder to protect children from family violence. That may not be your situation, but it is a situation for many children. What happens when that presumtion overrules best interest of the child. So if best interest of the child is working for 90% of the population, why change that? In a class on divorce I took (one of those required classes by justice department) the social worker said about 10% of people end up at trial, most people end up working it out. I agree for those that are high conflict and end up at trial presumtion of shared parenting is probably not going to prevent them from going to court anyways as the only difference will be trying to prove the presumption should not stand, instead of trying to prove not in teh childs best interest. Still trying to prove something and going to court either way.
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Old 01-31-2018, 02:14 PM
piggybanktoex piggybanktoex is offline
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When my wife asked for a divorce, she already had a honey in a distant location. She was happy to go 50%-50% without a word. It was just assumed.

Fast forward 6 months when she figured out that everything she was demanding was not guaranteed. NOW she thought the kids should be with her.

Quickly found out that it was a none starter as status quo was set.

Did I want my kids 50%, yes. Did i also not want to pay out an additional $77K per child (in our case)?...... damn right I didn't.

Was she motivated by money.....what so you think?

I dodged that bullet. Equal split should be the default. Ask LF32.
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Old 01-31-2018, 04:13 PM
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I dodged that bullet. Equal split should be the default. Ask LF32.
Reality check. Both of those situations would have ended up in court even with the presumption. In both your situation and LF32's the presumption would have been rebutted anyways by the other parent.

You would have been in the same situation. Jurisprudence from good judges has made "sole custody" and "majority access" thresholds really really high now.

To develop a whole system for the 1% isn't worth it. Especially in this case as the 1% will always rebut the presumption no matter how silly it is. Look back to some of the complaints LF32 was dealing with against him. No matter a presumption existing or not... The other parent would have entered into the "war" anyways.

A presumption wouldn't have helped WD either.

It only helps those who already operate in the mode that a presumption of equal access is in place. Jurisprudence is so tough that unless CAS has something to say... and you don't fight like a stupid idiot... You will be successful.
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Old 01-31-2018, 06:55 PM
youngdad91 youngdad91 is online now
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Quote:
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Finally, a presumption could be dangerous to parents as well as children in situations of family violence.
Well can't we put a little more effort in this (not to demean the Ministry of Attorney General) and make exceptions in cases of proven domestic violence? Can't it be a combination of both parents being equally entitled to access and that access shall be in best interests of child?

And what happens in case of artificial status quos absent of any presumption of maximum contact with both parents?
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