A suggestion for Scheer
My success rate for failed predictions remains unsullied. Just as I confidently predicted Donald Trump would never win the primaries, and then just as confidently predicted he would never win the presidency, I likewise predicted that Maxime Bernier was a shoo- in for the Conservative Party of Canada leadership race.
I paid scant attention to the winner, Andrew Scheer, during the race, and now am hastening to take his measure. So far, so good, in that he seems intent to accord free speech on campuses — a democratic principle presently in crisis — the importance it deserves. As he is clearly a cautious politician looking for “safe” platform planks that a healthy majority of Canadians can support across the board, this was a solid choice.
I can recommend one safe policy position that Scheer should support: equal shared parenting ( ESP) as the legal default following parental separations. ESP was a plank in Stephen Harper’s platform back in 2004, and to my knowledge was never officially abrogated. Yet, not only did Harper fail to address it as prime minister, he instructed his cabinet (several of whom would have supported ESP) to squash Bill C- 560, a 2014 private member’s bill brought forward by former MP Maurice Vellacott. The bill proposed to amend the Divorce Act to create a presumption of post- separation ESP, except in cases of reasonably suspected child jeopardy.
In case Scheer worries that his endorsement of ESP might alienate liberal Canadians, I can assure him it wouldn’t. Unlike abortion and gay marriage, ESP tends to be only strongly resisted by radical feminists and individuals with a financial stake in such matters, such as family law lawyers (for whom contested custody is a cash cow). More broadly, though, ESP is a nobrainer. According to a 2009 Nanos Research poll, 78 per cent of poll participants said they strongly or somewhat supported legislation to create a presumption of equal parenting in child custody cases. These numbers suggest that most Canadians view ESP as preferable to the adversarial, culturally retrograde “winner takes all” paradigm that still prevails in family courts.
As Grant Brown, the author of Ideology and Dysfunction in Family Law: How Courts are Disenfranchising Fathers, has written, a number of Supreme Court of Canada cases have emphasized that the Charter of Rights and Freedoms protects parents from being deprived of their children except with the best reasons. In Brown’s view, the courts have a tendency to overlook their own line of reasoning when it comes to custody disputes between separated parents. “If the parent’s ‘ right to security of person is at stake’ when their child is threatened with being taken away, why is there no presumption of equal shared parenting at the time of separation?” Brown asks. A revived legislative effort to promote ESP would help to ensure both parents’ rights are respected in family law disputes.
A law similar to Bill C-560 would also serve as a check on activist judges, who too often interpret the “best interests of the child” according to personal biases. In a previous column on this subject, I cited a female judge in B.C. who, according to the father, said to his teenage daughter who had expressed a preference to live with him: “We’ll see where you go when I put your father on the street with nothing.” Although this judge’s bias against fathers happened to emerge with unusual clarity, many other judges’ rulings display anti-father bias in subtler language.
Even the words used in adversarial court battles — like “awarding” of custody — reflect the disturbing attitude that children are the state’s property to bestow as it pleases. But mothers, who end up with sole custody 79 per cent of the time in courtordered custody arrangements, cannot be “awarded” what is already half theirs. It is more accurate to say that in the majority of such cases the state “takes away” children from their fathers.
It is neither liberal nor conservative to believe that children belong to their parents, not the state. Or to believe that, absent extraordinary circumstances, the state should have no more power after separation to rank parents as “better” or “worse” (an assessment that children normally have no desire to make) than it had before separation. That is, none.
Decades ago, most women stayed at home with the children, so it may have made more sense then that mothers should have more clout in family court than fathers. Those days are over. Fathers tend to be far more engaged with their children now than they used to be. But the Divorce Act remains stuck behind the cultural moment, impervious to empirical realities and a mountain of studies attesting to the importance of a father’s presence in a child’s life — and by “presence” I mean the right to, at a minimum, 40 per cent of a child’s time, not every other weekend.
Dr. Richard Warshak, Clinical Professor of Psychiatry at the University of Texas at Dallas, analyzed the relevant scientific literature on parental involvement after separation. More than 100 experts in the field endorsed Warshak’s conclusion that, “Just as we encourage shared parenting in two-parent homes, the evidence shows that shared parenting ( for parents who live apart) should be the norm for children of all ages, including sharing the overnight care for very young children.”
Six U. S. states have introduced ESP legislation in 2017, and more are expected to follow suit. ESP will have the effect of reducing post- separation conflict, male suicide rates (which peak following parental disenfranchisement), and opportunities for parental alienation, as well as improving social outcomes for children of divorce.
Congratulations on your victory, Mr. Scheer. I encourage you to declare ESP part of your platform. If you do, you will find approbation flowing your way from fair- minded Canadians of all parties.