The time for shared parenting is now

National Post, by Edward Kruk, Tuesday, February 08, 2005

Six years after the long-awaited report from the Joint House of Commons-Senate Committee on Custody and Access, and four ministers of justice later, where are we on the issue of parenting of children after separation and divorce? Shared parenting, the principal recommendation contained in the joint committee's report, has yet to be realized, as courts continue to remove loving parents from the lives of their children via sole-custody judgments.

Given the benefits it offers, shared parenting -- a post-separation arrangement that attempts to approximate the parent-child relationship in the original two-parent home -- should not be controversial. Yet upon receipt of the special committee report in 1998, then-justice minister Anne McLellan demanded more research before she would move toward implementation. Her successors have found similar excuses for inaction.

During the interim period, public support for shared parenting has increased: A recent National Post poll showed that 91% of respondents are in support of shared parenting after divorce.

Additional evidence has also emerged that lends support to the Committee's recommendations:

- According to a Health Canada report, the National Work-Life Conflict Study, Canadian mothers and fathers now spend about the same amount of time caring for their children each week (11.5 hours for mothers; 10.5 hours for fathers), as mothers' child care involvement has dropped by 33% over the past decade and fathers' participation has remained steady;

- A recent large-scale U.S. study of children who have lived through divorce concludes that most kids want equal time with each of their parents, and consider shared parenting to be in their best interests;

- A meta-analysis of the 33 major North American studies comparing outcomes in joint versus sole custody arrangements shows that children in joint arrangements fare significantly better than children in sole-custody arrangements on every single measure of adjustment; and

- The same study showed that conflict between parents in shared custody arrangements lessens over time, and increases in sole custody arrangements, as parents threatened by the loss of their children continue to battle years after their actual physical separation.

Few would challenge the fact that the present adversarial framework of divorce causes harm. But outside of shared parenting, no realistic alternatives have been offered, as battle lines are drawn between "mothers' rights" and "fathers' rights." The current Minister of Justice promises nothing substantive in the way of divorce-law reform. As he and his fellow Liberals drag their feet, Canadian children are being systematically severed from loving parents as judges instead embrace a winner-takes-all approach -- the winner usually being the mother.

It is time for the government to implement the recommendations of the joint committee. A presumption of equal time for children with each parent in all divorces where parents are already sharing child care responsibilities and wish to continue to play an active role in their children's lives would not only have immediate and beneficial consequences for children, it would provide a powerful symbol of the sanctity of continuing parent-child relationships and their immunity to the termination of the marital relationship. Moreover, such a legal presumption would give both sides in any troubled marriage an incentive for mediation and non-adversarial dispute resolution.

For the minority of break-up situations where violence is alleged, we must beef up criminal sanctions against those family members who perpetrate the violence. In the case where a criminal conviction results, courts should retain their traditional role in the determination of custody. In this way, allegations of criminality would be examined systematically by the criminal justice system, rather than brought out with little proof at custody hearings. As things stand, family courts are serving as quasi-criminal tribunals, adjudicating claims of criminal behaviour even though they do not have the resources to apply any form of due process. A system that drew a clear line between criminal law and custody determination would hold accountable those who falsely allege abuse in custody cases no less than those who perpetrate abuse.

We must heed what our children have been saying for years, both in their words and their distress: Equality is the answer. Our judiciary and lawmakers should be accountable to Canadian children and families on this matter. And the time has come to hold them accountable.

Edward Kruk is a professor of Social Work and Family Studies at the University of British Columbia.