The Hidden Downsides of a 50/50 Standard for Divorced Parents in Canada
On its face, the movement to make 50/50 shared parenting the standard for divorcing parents makes a lot of sense.
Public opinion polls support the idea, and there is a movement in some U.S. states toward making equal parenting time the presumption at the outset of a divorce case which one parent would have to rebut in their legal arguments.?
It makes sense at a time when Canada has already removed gender as a deciding factor and gotten rid of outdated terms like “maximum contact,” “custody” and “access” that implicitly framed the divorce as a fight with children as the prize to be won.
By contrast, a 50/50 standard lets couples know the rules when they separate and sets a clear standard that could reduce conflict that leads to litigation.
But so far, Canada has resisted the 50/50 approach, as there are some hidden downsides.
First, there’s a risk of the bad-faith spouse who has no interest in equal parenting but uses the standard to force the other parent into a needless legal battle, inflicting harm or harassment and undermining the needs of the children.
For critics of this approach, a presumption toward equal parenting could actually lead to increased litigation, more conflict and even a risk of domestic violence in some cases.
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And second, countries such as Canada and Austria have steered away from automatic shared parenting and instead put the focus on children.
Under Canada’s revised Divorce Act, the standard for deciding how to handle the children of divorce is the so called “best interests of the child” approach. The law now has an increased focus on considering the “voice of the child” and weighing children’s perspectives and preferences when structuring parenting orders.
Time will tell which approach works better. With different jurisdictions taking different approaches, there should eventually be the kind of data on the number of court cases and the outcomes on children to allow researchers to determine which one actually reduces conflict and stops needless litigation — something we all can agree on.
About Russell Alexander
Russell?Alexander is author of the book "Everything You Always Wanted to Know About Divorce,"?and founder of Russell Alexander Collaborative Family Lawyers, which has offices?in?Lindsay, Whitby, Oshawa, Peterborough and Toronto, Ontario. He focuses exclusively?on family law?in Ontario dealing with all aspects of divorce?including separation, child custody and access, spousal support, child support, and division of family property. He is a?fully trained Collaborative Practice lawyer and writes extensively about?family law issues and cases on his firm’s blog,?FamilyLLB.com. He is regularly featured in Canadian media outlets speaking about the latest trends in family law providing insight and advice and answering tough legal questions.?For more?information, visit:?https://www.russellalexander.com
Specialist Family Lawyer | Mediator | Parenting Coordinator | Collaborative Lawyer | Registered FDRP
2 年In Australia we have a rebuttable presumption of equal parental responsibility (guardianship in the old language). If the presumption is not rebutted then the court must consider equal parenting time and if that is not in the child's best interests, substantial and significant time (time on weekends, weekdays and signficant days like Mother's/Father's Day). This approach is not perfect and has its critics on both sides. However, it ensures the question is considered but does not mandate it, ensuring that the child's best interests remain paramount. What this change has done is shift time for Fathers away from what was the norm (every second weekend and half the holidays) towards more meaningful time. It's pretty common now to see a 5/9 arrangement in place. One of the primary issues with a presumption or requirement for equal time is that it presumes the parents can actually co-parent. If they are in court arguing about their children that is often not the case. That is when parenting coordination is then needed post-Orders to help the parents get onto the same page. A big ask after 2-3 years of litigation.