Canadian Bar Association AGAINST shared parenting

[helenj]

Canadian Bar Association is against shared Parenting because "it could increase litigation by forcing parents to lead evidence showing that the other parent is less fit, thus fueling conflict.

"Several stakeholders, including the Canadian Bar Association,Footnote14 have argued that a presumption could increase litigation by forcing parents to lead evidence showing that the other parent is less fit, thus fuelling conflict. The Special Joint Committee on Child Custody and Access noted that a parenting presumption would shift the focus of the inquiry in parenting matters away from the best interests of the child.Footnote15 A presumption would be inconsistent with the emphasis on children’s best interests brought in by the 2019 changes to family laws."

How many parents have had to spend their life savings to disprove allegations just to see their kids every OTHER weekend? How many parents have had to GIVE UP on trying to see their kids regularly because they no longer had the funds to go to court?
Many US states have already moved to presumption of shared parenting and it's time Canadian politicians do the same.


Link to the snapshot: https://www.justice.gc.ca/eng/rp-pr/...il/c78/03.html

[helenj]

What can we do?

1. Ask all politicians to support 50/50 presumption of shared parenting upon divorce. [Canadian Bar Association against this]

2. Paralegals to be able to practice Family Law so that it can become more affordable to Canadians. The current rate for a Junior Family Lawyer is $300/HR which remains out of reach for most Canadians average salary of $50,000 ($25/hr).

3. Clear and Convincing evidence on any allegations being used to limit a parent's access. Currently it’s “Balance of Probabilities” which is the lowest standard of proof. Which basically means, the Judge can look at you and say “Yup, you look like an abuser”.

4. Limit a Judge's discretion [the freedom to decide what should be done in a particular situation] by improving Family Law Regulations. As it currently stands, Judges make decision without a solid grasp of case law; rather they just pick and choose the parts of Family Law they like to justify their decision rather than a rigorous and factual process.

5. Reduce Judges retirement age from 75 to 65: Judges have to deal with complicated custody cases which involves hundreds of pages of small details. We need Judges that can balance conflicting evidence and legal arguments. Often times, these are lost on the older judges due to their fragility. Secondly, they bring out-moded ways of thinking.

[Kinso]

Ask all politicians to support 50/50 presumption of shared parenting upon divorce. [Canadian Bar Association against this]

I absolutely support this. The CBA is wrong.

Paralegals to be able to practice Family Law so that it can become more affordable to Canadians. The current rate for a Junior Family Lawyer is $300/HR which remains out of reach for most Canadians average salary of $50,000 ($25/hr).

I don't think this is the silver bullet some think it is. Washington state tried this, and after a few years discontinued the program. Paralegals are not trained the way lawyers are, and it does take a certain amount of revenue to make a family law firm a sustainable business proposition.

Paralegals offering services under the supervision of lawyers, now that is an idea I can get behind. Allowing them to attend court on less complex matters, while having the resources available to them when it gets difficult. I can support this balance.

Clear and Convincing evidence on any allegations being used to limit a parent's access. Currently it’s “Balance of Probabilities” which is the lowest standard of proof. Which basically means, the Judge can look at you and say “Yup, you look like an abuser”.

So would we want proof beyond a reasonable doubt (the criminal standard) before someone's access can be limited? This is a bad idea. I know there are stories of good parents who unfairly lose parenting time, and this is real problem. However, there are tons of stories of children who need protection from bad parents, and making it harder to get those children out of such situations only hurts children.

The system is never going to be perfect, but I think this suggestion would have more dire consequences than benefits.

Limit a Judge's discretion [the freedom to decide what should be done in a particular situation] by improving Family Law Regulations. As it currently stands, Judges make decision without a solid grasp of case law; rather they just pick and choose the parts of Family Law they like to justify their decision rather than a rigorous and factual process.

I agree all judges presiding over family law cases should be specialist family court judges. However, it is the job of litigants and their lawyers to bring the relevant law, not the judge to be all knowing. At least, theoretically that's the design.

If we want to move from an adversarial system to a more inquisitorial (European) system, this is an interesting idea, but it would require fundamental changes in how we approach court cases.

Reduce Judges retirement age from 75 to 65: Judges have to deal with complicated custody cases which involves hundreds of pages of small details. We need Judges that can balance conflicting evidence and legal arguments. Often times, these are lost on the older judges due to their fragility. Secondly, they bring out-moded ways of thinking.

Some great Judges are older, some ... less than great Judges are young. Age has little correlation with the quality of the jurist.

[pinkHouses]

I like the 50/50 presumption.
presumption of innocence too....."he hit me 6 months ago take them to jail" and officer has to go and arrest other party.

A novel idea I would be all for:
-make it easier to force disclosure.
-have some effective punitive damages for perceived perjury.
-put an end to parents being able to remove the children from the home without the other parents permission.
-regulate all supervised exchange services (it is a wild west out there)
-expose lawyers to consequences for manufacturing conflict.

Of course I don't know the reasons those things have not happened yet, there are probably some good ones.

[LovingDad1234]

20 years ago, if someone wanted to get divorced, they would go see a divorce lawyer. The lawyer would have an office with all sorts of law books, case law, and textbooks, etc. The lawyer was knowledgeable in the law regarding custody, access, equalization, and supports. The lay person (client) was not, unless they wanted to go wander the stacks for hours in the library.

Nowadays, with the internet as it is, everyone is a so-called expert and tries to interpret law themselves, given that you can do google searches for copies of the law, case law, etc.. You can read up about it literally anywhere you want, even while riding the bus. In the olden days, people put 100% faith in their lawyer to handle their matters. Now, people get self-educated and often times, they are wrongly educated or incorrectly interpret legislation to the way that fits their agenda.

Where I see the biggest fault, is the areas of legislation that are open to mis-interpretation by the lay person. There are 2 areas that stand out in the CLRA. It is the areas that states that judges will take into consideration these 2 things when considering custody and access:
1) History of abuse in the family
2) History of mental illness that can affect parenting.

All of a sudden, you have people who are not lawyers, reading this off the internet and latching onto these 2 areas of the law thinking they can exploit them to fit their agendas for custody and access of the children. Ever get into an argument with your ex? Yes? Well now you are labelled as abusive by your ex. If you google search any type of personality disorder, any lay person can say "Hmm, my ex tends to show signs of some of these traits therefore he/she has this type of personality disorder". Next thing you know, lay people, who are not trained in law or psychology, write ranting court briefs trying to exploit those 2 grey areas of the legislation to suit their agendas for custody and access.

Quite simply, if someone makes accusations of abuse, they should be able to produce material evidence and not simply hearsay recounting of a time that an argument took place in the kitchen and voices got loud. Same with allegations of mental illness. Lay people should not be able to write "I think he/she has BPD in accordance with what I experienced". Lay people who do internet searches are not qualified to say such inflammatory statements to gain favour in a custody/access case. Such allegations should be backed by a Doctor or Psychologist diagnosis, otherwise outright dismissed.

[Stillbreathing]

Totally agree with what Livingdad1234 said above. However the flip side is that even when you have corroboration from multiple sources, nueropsychologists(3), physiatrists(2), world renown brain injury specialists (2), family doctors(3), police (4 different jurisdictions), and your ex is found to be catastrophically brain injured to the point of requiring 24/7 supervised access for his own safety in another court; family court has a dangerous way of minimizing these facts and putting everybody involved at serious risk.