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Grace 05-26-2006 12:31 AM

Interesting Article on Joint Custody
Jay Hill favours presumptive joint child custody on divorce

By Cristin Schmitz

Former Conservative Party House Leader Jay Hill wants to bring presumptive joint custody to the new federal government agenda.
Click here to see full sized version.

Divorce reform has not been identified as a key priority by the new Conservative government, but one of its spokespersons on family law says he will push to have presumptions in favour of “shared parenting” and grandparent access added to the Divorce Act — a policy that could find favour with many Opposition MPs in the minority 39th Parliament.

British Columbia MP Jay Hill, a former Conservative Party House Leader and critic on custody and access reform, has been an enthusiastic advocate for presumptive joint custody or “shared parenting” since he was first elected in 1993. At press time, Hill’s name was widely mentioned as a potential Cabinet member.

Hill said he remains convinced that what he calls an “equal access to parents” presumption (as viewed from the child’s perspective) is essential to counter the gender bias in favour of mothers that Hill perceives in custody and/or access disputes.

He does not accept that joint custody presumptions promote strife. “I don’t buy it. I think it’s opposite,” Hill told The Lawyers Weekly on his cell phone as he campaigned in his Fort St. John, B.C. riding during the final week of the federal election campaign.

“We presume, when a marriage is intact, that both parents are ‘good parents’ — why, in heaven’s name, when the parents split up, is there not a presumption they are both still good parents and that the child deserves access to both?” he queried.

“I fervently and passionately believe that it should be the right of a child to equal access to both parents, end of story, unless it’s not in their best interests,” he continued. “I have pressed for amendments to the Divorce Act to automatically grant ‘shared parenting’ in the case of divorce or separation, except in cases of abuse or neglect. . .or denigration of the other parent. On a personal level, that’s where I want the law to go, into the area of shared parenting as put forward by the 1998 joint Senate/House of Commons report For the Sake of the Children.”

Divorce reform is not one of the five priority items Prime Minister Stephen Harper pledged to deliver on during a Conservative mandate, but Hill said he and likeminded MPs will push to get the subject on the national agenda.

The Conservative party nailed its colours to the mast at its first policy convention last March in Montreal in a resolution entitled “shared parenting” that is now official party policy:

“A Conservative government will make the necessary changes to the Divorce Act to ensure that in the event of a marital breakdown, the Divorce Act will allow both parents and all grandparents to maintain a meaningful relationship with their children and grandchildren, unless it is clearly demonstrated not to be in the best interests of the children.”

While the new minority Parliament likely means the Conservatives will find it as difficult as the Liberals did to take on the hot-button issue of custody and access reform (the Liberals shelved their own contentious amendments while they grappled with their even more divisive same-sex marriage bill in 2005), the policies of the two parties stand in stark contrast.

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.

Former Justice Minister Irwin Cotler said he intended to revive, with a few changes, C-22. The bill, which won the support of the Canadian Bar Association, jettisoned the familiar touchstones of “custody”, “access”, and the “maximum contact” principle in favour of a “parental responsibilities” model which divies up child chare obligations and decision-making between the parents.

“We were opposed to that bill so there is no way that we would bring it back,” vowed Hill. “I felt that the legal language they were using actually moved us further away from the potential for automatic shared parenting.”

Hill acknowledges that divorce reform doesn’t lend itself to quick fixes. “I don’t think that this is going to be a simple thing to get drafted properly, . . .but I think that we will have to take some time to look at how we can move forward with the recommendations from that old [Senate/Commons] joint task force report For the Sake of the Children,” Hill said. “This is such an important issue to the future of our country because it’s our children’s future.”

The past chair of the CBA’s national family law section, Judith Huddart of Toronto’s Dranoff & Huddart, said her group would regret to see the direction of C-22, which was modified in response to CBA input, fall by the wayside. “The members of our section put in a lot of work,” she noted. “If we have to start over and wage the same battles that we did originally to get these reforms, it will be disheartening.”

She stressed that the CBA prefers to focus on parental responsibilities, rather than parental power. “I don’t think we are in favour of the shared parenting presumption scenario,” elaborated Huddart. “It has a lot more to do with power struggles between parents. What we want is parents to find a way to communicate positively about their children.”

Toronto family law practitioner Carole Curtis said she doubts the Conservatives will be able to reform the Divorce Act in a minority Parliament. “They won’t have the stability and the authority to bring in custody and access reform which is hugely controversial,” she suggested. Added Curtis: “for [the Liberals’] C-22 to be dead is not a sad thing for me at all, but I am concerned about a shift to the right in family law policy. The current situation of custody and access, although not perfect, is working and I would rather have no change, than a move towards shared parenting or joint custody or parenting plans, or whatever other euphemism somebody wants to use, because the current situation, for the majority of separated families, reflects the arrangements that existed before separation. The majority of families arrive at these arrangements on consent, without going to court, and the arrangements still are that the mother is usually the primary caregiver and often that translates into sole custody, and that the father is an access parent paying support.”

Philip Epstein of Toronto’s Epstein Cole, who was a consultant to the Liberal government in the creation of the federal child support guidelines and draft spousal support guidelines, told The Lawyers Weekly he strongly disagrees with expressed Conservative leanings toward joint custody presumptions, automatic grandparent access, and abolishing child support for adult children under the Divorce Act. While reform is needed, “the Conservative platform throws out the baby with the bathwater,” Epstein argued. “I think the Conservative platform in family law panders to the extreme right wing of the fathers’ rights group. . .around this country which have very strong views about Bill C-22, about the general custody and access provisions that exist, and about child support. The father’s rights groups are generally extreme and on the fringes of society and from my experience with them, bearing in mind that I act for as many husbands as I do wives, that particular group is looking for ways to be able to reduce their obligation to pay child support.

“The suggestion in the Conservative platform that there would be a presumption of joint custody is a notion that virtually all the states in the United States have abandoned, having tried it initially and found that it was usually wanting. It simply does not work and promotes a great deal of hostility between families, and frequently ends up as a fight as to how to avoid child support obligations.”

Epstein contends that the notion of terminating child support at age 18, as most states do south of the border, fails to take into account that many divorced children are economically disadvantaged as compared to children from intact families, and that terminating child support would unfairly throw much of the burden of seeing children through university on custodial parents.

“Children in those situations need that extra support,” Epstein said.

But Vancouver family law practitioner Lorne MacLean of MacLean Family Law Group, who supports the creation of a presumption in favour of shared parenting, defended the Conservatives’ stance on that particular issue.

“I would like to see things become more on an even keel [in family law policy], seeing that the tendency of the Liberals is arguably to pursue a more feminist agenda, and they have done that in the child support guidelines, and the draft spousal support guidelines, and the refusal to accept the recommendations of the For the Sake of the Children report,” MacLean explained. “Children shouldn’t forfeit the love and the guidance of two caring and concerned parents just because the marriage broke down,” he urged. “Parenting in an intact family is one of life’s most demanding tasks, and it’s even more so for a single parent, so with shared parenting each parent has a chance for a respite and the children continue on in sort of the status quo of two parents being very concerned about them. I am opposed to anything that interferes with that.”

DadofTwoGirls 05-26-2006 09:15 AM

Excellent article Grace. It's nice to see both points of view in the article. I think that for the most part, Carole Curtis is correct when she says:

"...the mother is usually the primary caregiver and often that translates into sole custody, and that the father is an access parent paying support."

But, shared custody regimes seem to be treated as an aside or an aberation and don't get the same treatment or study as the more frequent scenario. As such, shared parenting regimes can be unfair.

It would be nice to see the courts base their shared parenting decisions on a comprehensive study.

Divorcemanagement 05-26-2006 11:16 AM

Carole Curtis position is a long held one - she said the same things back in 1998 when the Joint Committee on Custody and Access was national news.

The issue to remember is that with any changes to law, there is always the inevitable "bring my existing court order in line with the new law" litigation that occurs.

If new legislation places emphasis on structuring actual parenting plans that deal with how child care will occur, rather than "who gets the kids on what date", it might be a positive thing.

Decent Dad 05-26-2006 02:47 PM


What paper was this in? What date/edition?


Divorcemanagement 05-26-2006 04:16 PM

I think it's from The Lawyer's Weekly - Canadian edition.

logicalvelocity 05-26-2006 05:40 PM

Awesome article Grace,

The state of Michigan has presumptive joint child custody in place. Its ironic that the Divorce rate actually declined since this came into effect.


Grace 05-26-2006 09:12 PM


The article was found here:

Decent Dad 05-27-2006 06:35 AM


I know that Pennsylvania was/is going joint custody with bill HB 888. This was after a governer's son was put through the ringers in divorce and cost him over $30K to get joint custody.

Divorcemanagement 05-27-2006 08:03 AM

I would be very surprised if this issue came up in a minority government situation, it's political dynamite because of the controversy associated with the topic. I do believe there needs to be a national debate about divorce simply because the current system needs improvements - big improvements.

I would personally like to see a mandatory role for Divorce/Parent Education as a condition for obtaining a divorce (although that would fall under provincial jurisdiction) and an increased role for mediation - possibly even a tax payer funded mediation service so that people could access free mediation. (There is free mediation in Alberta for cases where one party earns $40,000 or less/year and it is a resounding success).

I'd also like to see parenting coordination brought in as a tool for high conflict situations, although it would have to function under provincial laws governing arbitration.

Grace 05-27-2006 11:32 AM

Joint Custody
virtually all the states in the United States have abandoned, having tried it initially and found that it was usually wanting. It simply does not work

Anyone have any info/stats on this?

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