CBA’s surprise embrace of rebuttable presumption is welcomed

Family Law /
Gene C. Colman
Latest posts by Gene C. Colman (see all)

By Paul Russell, LegalMatters Staff • When Toronto family lawyer Gene C. Colman appeared before the Justice Committee in Ottawa when it was considering amendments to the Divorce Act through Bill C78, he argued that legislative reforms concerning “child custody” should establish a rebuttable presumption of equal shared parenting as the philosophical starting point.

“That is a key position of the group I co-chair, Lawyers 4 Shared Parenting,” explains Colman, principal of the Gene C. Colman Family Law Centre. “At the time, the Canadian Bar Association (CBA) and other organizations were positively apoplectic about the idea of a “rebuttable presumption.

“And sure enough, that concept did not make it into the Bill.”

But it now appears the CBA has had a change of heart. The national association recently released a statement, summarizing a letter its Family Law Section wrote to the justice minister, urging the government to make changes to the federal Child Support Guidelines (CSG) concerning shared care.

New approach would increase ‘access to justice’

“A rebuttable presumption that the straight offset be applied in these cases would be more consistent with the goals of the Guidelines,” the letter reads. “This presumption would provide guidance to parents and courts, increase predictability, consistency and court efficiency and reduce parental conflict by making child support calculations more objective … a presumption would also increase access to justice by increasing the simplicity, predictability and objectivity of calculations of child support in situations of shared care.”

“This is exactly what I and others in the shared parenting movement have been arguing for,” Colman tells LegalMattersCanada.ca.

“They have adopted our wording, and we say, ‘More power to you.’ We are glad to see the CBA has abandoned the idea that family justice has to be excessively individualized, using the unduly complicated calculations that section 9 of the CSG and cases decided under that section currently mandate. Everyone agrees this approach is not working,” he says.

“While we applaud the CBA for taking this stance, and agreeing there are real benefits to assuming there should be a rebuttable presumption when it comes to determining support, why not apply that same logic to determining parenting time standards?” asks Colman. “This is a real opportunity to improve the lives of many children and parents across Canada.”

22 per cent of families share parenting

In a letter (read the full letter and more on Colman’s blog) to the justice minister, George Piskor, vice-chair of the Equal Shared Parenting Working Group (of which Colman is a member), offered “qualified support” to the CBA endorsement. He stated that any change would benefit “an estimated 22% of Canadian families with shared parenting – ranging from a low of 9% in Alberta to a high of 30% in B.C.”

“We concur with the CBA assessment that application of the current Contino v Leonelli-Contino standard is ‘not practical in most cases,’ costly in time and money, and the process is especially daunting for self-represented parties given that the Guidelines offer no guidance on how to navigate these complex matters,” adds Piskor.

Colman says he is pleased to see the Contino v Leonelli-Contino decision referenced in the CBA letter, since his published writings on section 9 of the CSG were referenced by the Supreme Court of Canada in the case. One example is when the judgment states that the formula used to establish support payments unfairly assumes “that all of the expenditures for the children are met by the recipient parent and no account for any child‑related expenditures is incurred by the payor parent at any level of access.” 

Colman says the CBA is proposing that if the parents roughly share in parenting duties after separation, a simple formula that takes into account their respective incomes and the number of children can be used to determine what the support payments should be.

Simple formula to determine support payments

“Making the straight offset a presumption would leave open the possibility for parties to rebut the presumption in cases where it would be inappropriate, as with other provisions in the Guidelines that permit these arguments,” the CBA letter reads.

If a rebuttable presumption were applied to determine parenting time and parental decision making, Colman explains, instances where it would not work would include if the parents lived a great distance from each other or in cases of family violence.

In his letter to the justice minister, Piskor says his group believes the “straight offset proposed by CBA is inappropriate … we suggest a simple technical correction of multiplying the proposed straight offset by 75% to reflect that the children reside in each household approximately 50% of the time and that the costs of dual residency are 150% of single residency based on the accepted (but not empirically confirmed) assumption by the courts of an additional 50% fixed cost allowance for the second residence.”

Colman says that this percentage adjustment suggestion “is not a make-it-or-break-it position” by Lawyers for Shared Parenting. “It surely makes sense, but we are more concerned with parenting time than we are with the money.”

‘Current system encourages conflict’

“The current system encourages conflict and forces parents into an adversarial system involving lawyers and the courts,” he says. “Many men have to prove they are a super parent in order to get 50/50 time. They shouldn’t be put into that position.”

Colman says social science research shows that a rebuttable presumption of equal shared parenting is in the best interests of children.

“All these arguments the CBA make about reducing parental conflict, promoting efficiency and improving access to justice apply in spades to the reforms needed in our Divorce Act and provincial legislation when it comes to parenting provisions,” he says.

“We are very encouraged by the arguments made by our friends of the Canadian Bar Association and support them 100 per cent,” Colman adds. “We just hope there will be a spillover when it comes to how parenting time is determined.”