The Best is the enemy of The Good – Voltaire

The family court system is founded on the adversarial criminal court model. How bizarre is that? No surprise that this system frequently penalizes parents who only yesterday were considered to be good parents. Why is this even in the courts?  Shouldn’t a system of collaborative mediation and dialogue be utilized to support parents after a traumatic end to a relationship rather than a forum which escalates conflict, rewards lawyers for their adversarial nature, and strips both parents of their assets when they are frequently struggling to deal with extra expenses after a break-up! Makes about as much sense as an extra tax on individuals who are unemployed! Now that that’s out, on to Equal Parenting.

The family court has been described as a systematic and working threat to the best interests of children. There is a private members Bill in the Canadian House of Parliament called Bill C-560 or the Equal Parenting Bill. It seeks to bring about meaningful social change for the betterment of Canadian families and thereby society. It is based on the understanding that children need care and nurturing from both parents, whether their parents are married, unmarried, separated or divorced.

The current Family Law Act is based on the adversarial idea of winning custody of a child and there is a ‘best interests of the child test’ that contains a number of considerations that a judge may or may not use in a ‘winning’ custody decision. But there is no definition, nor does the legal lobby want a definition, “There is, therefore, little reason to believe that elaboration of the best interests of the child test will actually increase the predictability of the outcomes of child-custody disputes and, thereby, reduce litigation.” The Family Law Act maintains the arbitrary power of courts/judges to decide the fate of children and their parents. For example, what does ‘substantially enhanced’ mean? Easily it could mean at least three different things to three different judges. What does the doctrine ‘parens patrie‘ mean? In Canada it gives a family court judge complete judicial discretion to decide the fate of children. It is so antiquated it’s roots date to Feudal England. Although like much of tradition, being old doesn’t necessarily mean its logic is sound.

So under the law, as it is now, parens patrie could be invoked by a traditionalist judge who believes a woman’s place is the home with the children and as a result of personal beliefs, award custody to a mother every time, his mind being unclouded by what research has actually shown is best for the child. Under the very same rule another more materialist judge may believe private school, tutors and wealth are best for children, she may award custody to the wealthiest parent – with her mind unclouded with what research has show to best for the child. Another judge who believes in two parent households, can under the feudal tradition, can grant custody to a remarried parent in a two parent home, and so on..

The Equal Parenting Bill also uses the phrase, best interests of the child. Bill C-560 wants the default of that phrase to mean that a court automatically, “apply the presumption that equal parental responsibility is in the best interests of a child of the marriage.” It would reduce litigation. The legal lobbyists want to maintain the adversarial approach and as a result don’t want a shared parenting presumption in the law. The bill also wants every lawyer, advocate etc. to inform a former spouse that co-parenting is in the best interests of the child, something very much against the adversarial grain of law.

Yet the Equal Parenting Bill is under threat in Canada, as much from the legal lobby as from those supporting the legislation. The threat comes from the meaning of words in language, and admittedly valuable and important clarifications are needed. It’s understandable that those involved want the best of all possible worlds. But a united front must be presented by supporters of the Bill if it is to survive its early days. Under the seemingly geologic pace of parliamentary procedures the time for changing some of the wording in the Bill is once it’s safely arrived in the Committee stage of its adoption procedure, not while it is struggling to survive in the thin air of Parliament.

The other interesting aspect of the Bill is that the word shared isn’t mentioned. And equal is defined as “joint responsibility for long-term decision-making” it does not address the actual amount of time a parent spends with the child. The bill would have the courts “apply the presumption that allocating parenting time equally between the spouses is in the best interests of a child of the marriage.”

The Bill also has a key premise which hopes to, “encourage divorcing spouses to assume more responsibility for their affairs, with less reliance on adversarial processes.” Yet there is nothing to prevent the following, which is a recent excerpt from an email I’ve received, “Mother was half an hour late for 1.5 hour

[lawyer] meeting. I travelled 3.5 hours, She commuted 20 minutes. Zero consequence (I arrived, as always, 30 minutes early).” Passive aggressive antagonism is a form of conflict that the courts simply can’t afford to deal with, yet paradoxically can’t afford to ignore.

Bill C-560 has taken over 4 years in its current form to get to where it is. There was a previous bill that died in the early 2000’s. It’s a tedious process and almost as charged, ironically enough, as a contentious and messy divorce.

So sometimes, and very likely in this case – The Best is the enemy of The Good, or perhaps the better…