Social sciences offer guidance on the best interests of the child

Family Law /
Gene C. Colman
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By Paul Russell, LegalMatters Staff • The amended Divorce Act’s focus on the “best interests of the child” is to be applauded as long as judges are willing to consider guidance from social scientists in this area, says Toronto family lawyer Gene C. Colman.

“Our firm will be advancing the argument that the court should have reference to social science literature in order to inform itself as to what constitutes ‘best interests’ for most kids,” says Colman, principal of the Gene C. Colman Family Law Centre.

“Case law shows us that some judges understand the importance of social science research that shows that kids need both parents,” he tells LegalMattersCanada.ca. “Sadly, the case law also shows that some on the bench simply don’t get it.”

A Department of Justice (DOJ) backgrounder explains that s. 16 (6) of the old Act had a heading that read “Maximum contact.” Under that it stated, “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”

In the amended Divorce Act, the heading on 16 (6) Act reads “Parenting time consistent with best interests of child” with the explanation that: “In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.”

“I presume vested interests were able to have the reference to a parent’s willingness to provide time to the other parent removed”, says Colman.

‘Maximum contact’ language removed from the Act

“The heading ‘maximum contact’ was there in Bill C-78 to amend the Act when it was passed by Parliament, but I guess someone convinced the justice minister to remove any mention that children ‘should have as much contact with each spouse,’” he says

Colman says he appeared on behalf of a number of organizations before the Justice Committee of the House of Commons when amendments to the Divorce Act were being considered.

“I and others advocated very strongly to change the bill to include a rebuttable presumption of equal shared parenting,” he says, explaining that it would make the shared parenting standard a default position after a marriage breakup unless issues such as family violence were present.

“Our position was not accepted, though we could tell that those opposing the idea were running scared,” Colman says. “Almost every interest group that gave evidence to the Commons committee felt it was important to attack the concept of “rebuttable presumption of equal shared parenting”. It wasn’t even in the Bill, but they attacked it anyway.”

He notes that a growing number of U.S. states have endorsed the concept, such as Kentucky, Arkansas, Arizona, the District of Columbia, Iowa and Nevada.

‘Equal shared parenting is best for children’

“Here in Canada, I think legislators know in their heart of hearts that the rebuttable presumption of equal shared parenting is best for children,” Colman says. “However, it is not necessarily a good thing for lawyers and others who feed off family conflict.”

A study by a University of British Columbia professor backs that up, as it has been reported that Australia’s shared custody law resulted in “applications to court over child custody falling by a staggering 72%. Court-determined parenting arrangements fell from 7.8% to 2.8% of cases and lawyer negotiation from 10.6% to 5.8% of cases. Corresponding to decreased litigation has been a marked increase in the use of family relationship centers and family mediation services. And most Australian parents (72%) now resolve parenting arrangements without the use of any legal services.”

Since the best interests of the child is now firmly ensconced as the sole factor in deciding parental decision making and parenting time, Colman says courts have to be willing to look at social science research on how children are affected if they lose contact with one parent or have precious little contact with a parent.

“If you are an adequate parent, all things being equal, you should have 50/50 time with your children,” he says. “But in the decades that I’ve been practising family law, it seems we have to prove that a father is “Super Dad” to achieve equal parenting time. That is just not fair and it’s certainly not great for the kids.”

The amended Divorce Act includes a short list of “Factors to be considered” when deciding on parenting time. These include “each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse” and “the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child.”

Colman says both of those imply maximum shared parenting time.

Role of social sciences is clear

“This list is not meant to be exhaustive, but just examples of what the court can be looking at.,” he says. “So we can ask ourselves, ‘What other evidence out there will inform the best interests of the child?’ And that is where the social sciences come in.”

In a past trial, Colman says he represented a father seeking equal shared parenting of his daughter. The first witness he called was Dr. Richard Warshak, a U.S. psychologist who has written numerous books and articles about the bond between parents and children.

Shortly after Warshak’s eloquent testimony, he says the other side offered to settle, granting his client close to 50 per cent of the parenting time.

“The evidence the social sciences offer is that children flourish if they are given equal parenting time,” Colman says. “And don’t forget the grandparents.”

Social science studies need to be considered when deciding best interests for most kids, he says.

“Lawyers like myself and my colleagues in this firm have our work cut out for us,” Colman says. “Although the issue of maximum contact has been dealt a hardy blow with these amendments to the Divorce Act, the concept is far from dead. We just have to readjust the strategy and convince the judges of the concept, though we were not able to convince the legislators of the same thing. Yet.”