When two people decide to separate and divorce, they must contend with a number of strategic and emotional decisions as part of the divorce process. Among them are division of assets; spousal support and custody of their children.
Generally, custody deals with major decision making rights in relation to children. Such decisions include things like education, religion and medical decisions.
Custody is different from residence. Residence refers to where the children ordinarily reside. Parents can share joint custody while the children have their primary residence with only one parent.
Shared parenting and joint custody work well if both parents can cooperate with each other and share similar visions as to what is in the best interests of the children.
Indeed, our common law, as currently proscribed in the Divorce Act, has traditionally utilized the “best interests” test when making a determination about parenting arrangements.
Currently, however, there is a Bill before parliament which proposes changing the status quo. Bill C-560 would seek to, instead, enshrine the presumption of equal parenting.
The second reading of this Bill took place in the House of Commons on March 25th, 2014 where it continues to be a hotly contested issue. After all, should Bill C-560 become law, it will be a dramatic game changer for child custody matters in this country.
As parenting roles continue to evolve away from traditional models, a new reality has emerged where both parents can now be viewed as being equally capable of effective parenting.
From this perspective, the vast majority of divorcing couples have typically been able to come up with parenting plans that would work best for all parties involved. This proposed Bill would shift the starting point for these sorts of discsussions.
Bill C-560’s advancement through parliament should be of great interest to all parents since it would apply, not just to people who will face custody and access disputes, but also to parents who already have a custody order in place. This Bill proposes that those agreements should be reviewed as well.
As with any change having emotional and financial implications, there are bound to be those both in favour of this Bill and those opposed. It was no different in countries where such shared parenting legislation is already the law; countries such as: Australia, France, Denmark and Belgium.
As Family Law lawyers, our goal is to maintain positive and strong emotional ties for children with both parents to the extent that it is possible. And we will continue to believe that this is the way forward whether current legislation remains in place or should the new law come into force.