Approximately 40 percent of Canadian marriages end in divorce, but when a couple separates children shouldn't be separated from their parents. Divorce is hard for kids, but countless studies show that when parenting time is shared equally kids do better in everything from increased academic performance, decreased mental illness, to lower rates of incarceration. But even without social science, it's just common sense that kids need both their parents. This is why 70 percent of Canadians either strongly support or somewhat support laws that would create a presumption of equal parenting.
Unfortunately, this is not what happens in the majority of child custody cases. In 79 percent of Canadian cases the mother is awarded exclusive custody, in 7 percent fathers are. Shared parenting is only ordered in 13 percent of cases. For anyone concerned about child welfare and gender equity these numbers are shocking. They are also telling us a tragic story: children are being separated from their parents at an alarming rate, and it's our courts doing the separating.
It's a sad fact that separation and divorce can be ugly, and children are often used as pawns. If a couple is in court, conflict is already high. Parents in this situation often focus on "winning", rather than what is best for the kids. Winning often means getting the bulk of the parenting time, or even cutting the other parent out of their children's lives completely.
Current laws direct courts to make decisions based on the best interests of the child. This sounds great on paper, but in reality it means decisions come down to the preferences of the judge that day, most of whom have very little knowledge of child development. Some judges believe children belong at home with mom. Some believe shared parenting is best for kids, others think kids should live primarily in one household. Angry and hurt parents have every motivation to fight against sharing parenting time, hoping to draw a sympathetic judge.
The answer is a legal “rebuttable presumption” of equal shared parenting. Of course, the best outcome is for parents to work without the courts to find a solution that works best for their kids. But if they can't, courts should start with a presumption that the best thing for the kids is what is best for most kids: equal time with both parents. If one parent disagrees they must present proof that equal time isn’t in the child’s best interest. This isn’t about parents’ rights; it’s about children's rights.